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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA, Appellee
,

v.

GABRIEL JOHN SANCHEZ, Appellant

.
No. 1 CA

- CR 13

- 0920

Appeal from the Superior Court in Maricopa County

No. CR2011

- 008279

- 001 The Honorable Roland J. Steinle
, Judge

AFFIRMED

COUNSEL
Arizona Attorney General’s Office , Phoenix By Joseph T. Maziarz Counsel for Appellee

Office of the Legal Advocate
, Phoenix By Sara Xochitl Orozco , Frances J. Gray Counsel for AppellantSTATE v. SANCHEZ Decision of the Court

2 MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Randall M. Howe joined.

N O R R I S , Judge:

¶1 Gabriel John Sanchez appeals his convictions and sentences for first

- degree m urder and related charges
, arguing the superior court should have excluded improper opinion evidence, was biased
, and imposed an illegal sentence for his conviction for first

- degree murder. We disagree with each argument and affirm his convictions and se ntences.

FACTS AND PROCEDURAL BACKGROUND 1

¶2 At trial
, the State presented substantial evidence Sanchez shot and killed the victim, Angel
, in the doorway of Sanchez’s estranged wife’s house. Sanchez then threatened at gunpoint others at the house w ho had witnessed him approach the house, heard the gunshot, and saw Angel lying dead on the floor. Sanchez’s sister helped Sanchez put Angel’ s body in the trunk of her car and then drove Sanchez to the Salt River Pima Maricopa Indian Reservation, where he left A ngel ’ s body.

¶3 The jury found Sanchez guilty of premeditated murder, aggravated assault, and other related charges. The superior court sentenced Sanchez to natural life for the first

- degree murder

.
DISCUSSION

I. Evidentiary Error

¶4 Sanchez first argues the su perior court committed reversible error in overruling his objection to what he argues on appeal was improper opinion evidence because it was not based on the witness’s per sonal knowledge or observation. During cross

- examination by defense counsel
, the wit ness testified Sanchez had telephoned him “t he day that he murdered Angel.” Sanchez objected, asserting the testimony was

1 We view the trial evidence in the light most favorable to sustaining the jury’s verdicts. See State v. Nelson , 214 Ariz. 196, 196, ¶ 2, 150 P.3d 769, 769 (App. 2007)

.STATE v. SANCHEZ Decision of the Court

3 “unresponsive” to his question, “When was that day you talked with your broth er? Do you remember the day?”

¶5 Because Sanchez failed to object at trial on the ground he argues on appeal, we review for fundamental error only. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) ; State v. Hamilton
, 177 Ariz. 403, 408, 868 P.2d 986, 991 ( App. 1993) (“[A] n objection to the admission of evidence on one ground will not preserve issues relating to the admission of that evidence on other grounds .”). Further, Sanchez bears the burden of establishing fundamental and prejudi ci al error. See Henderson, 210 Ariz. at 56 7

- 6 8, ¶ ¶ 22
, 26, 115 P.3d at 60 7

- 0 8

. ¶6 Here, e ven assuming the witness’s testimony was improper, Sanchez has failed t o show resulting prejudice. To prove prejudice, a defendant must show that absent the error
, a reasonable jur y could have reached a different result. Id. at 569, ¶ 27, 115 P.3d at 609

. On this record, a reasonable jury could not have reached a different result. O ther trial evidence overwhelmingly demonstrated Sanchez had murdered Angel and dumped his body in the desert

. Further
, the witness had testified in the State’s case

- in

- chief that during the telephone call
, Sanchez had told him he did not have to worry about Angel’s relati onship with his daughter because, “I took care of him so you never have to see him again.” On this record, the witness’s statement could not have caused the prejudice necessary for reversa l on fundamental error review.

II. Judicial Bias

¶7 Sanchez next argues the trial judge was biased

— as evidenced in the aggregate

— by threatening to remove Sanchez from the courtroom if he continued to talk to defense counsel while the judge was speaking; overruli ng defense counsel’s objections and criticizing defense counsel regarding the propriety of his questions to several witnesses ; and instructing the jury it should take into account the victims ’ right to attend trial in setting its deliberation sched ule

. Although the parties dispute which standard of review we should apply to this issue, we do not need to resolve that question because the record fails to demonstrate prejudice or bias as necessary for reversal under any applicable standard of review.

¶8 A defendant has a due process right “to have the trial presided over by a judge who is completely impartial and free of bias or prejudice.” State v. Carver , 160 Ariz. 167, 172, 771 P.2d 1382, 1387 (1989) ; see also State v

. Ellison
, 213 Ariz. 116, 128, ¶ 35, 140 P.3d 899, 911 (2006)

. A trial judge is presumed to be free from bias and prejudice, and a defendant bears the burden of establishing bias and prejudice by a preponderance of theSTATE v. SANCHEZ Decision of the Court

4 evidence. See Ellison, 213 Ariz. at 128, ¶ 37, 140 P.3d at 911 . To overcome the presumption of judicial impartiality, the record must demonstrate “a hostile feeling or spirit of ill

- will, or undue friendship or favoritism” toward one of the parties. State v. Myers, 117 Ariz. 79, 86, 570 P.2d 1252, 1259 (1977)

. ¶9 First, t he record does not demonstrate the judge was prejudice d or bias ed when, outside the presence of the jury, he became exasperated because Sanchez was speaking to his lawyer at the same time the judge was speaking. The judge told Sanchez, “When I’m speaking, sir, you better pay attention to me,” and then, “If you’re going to show me disrespect and you’re not going to act appropriate in this courtroom, then I’ll just go over to the Central Court Building and put you in a room in the back and you can view the proceedings on T.V.”

¶10 The next morning, at Sanchez ’s request, defense counsel requested clarification as to how Sanchez had acted inappropriately, and for reassurance that the court could still be fair and impartial and was “not totally biased against [Sanc hez] .” The judge responded , “I was talking, and he was engaging in a conversation with you[,] distracting you. . . . When I’m talking, I expect people to pay attention. It’s rude behavior. As a Judge of the Superior Court, I’m entitled to respect, and lawyers are not to engage in that kind of conduct. . . . But throughout this case, when I’m ruling, he’s talking to you all the time. And you can’t listen to both.” The judge insisted he could be fair and impartial , and stated, “ just because I’m enforcin g the rules does not mean that I can’t be fair and impartial.” The judge revisited the issue later that morning, telling defense counsel, “ I f you want to accuse me of being unfair in the future, you better h ave some facts to support it.”

¶11 On this record
, t he judge’s remarks did not evidence b ias or prejudice; they represented annoyance and exasperation at having his impartiality questioned. A nnoyance and exasperation , however, do not equal judicial bias. See Liteky v. United States, 510 U.S. 540, 555

- 56, 1 14 S. Ct. 1147, 1157, 127 L. Ed. 2d 474 (1994) (“ Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women . . . sometimes display.”)

. ¶12 Second
, the record does not demonstrate the judge was prejudice d or bias ed because he overruled defense counsel’s objection s and questioned the propriety of defense counsel’s questions. “Within reason, a judge does not display bias or cause prejudice whe n acting sua sponte to control the courtroom and the trial.” State v. Bible , 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993) ; see also Liteky , 510 U.S. at 556 , 114 S. Ct. at 1157 (“A judge’s ordinary effo rts at courtroom administration

— even a stern andSTATE v. SANCHEZ Decision of the Court

5 short

- tempered judge’s ordinary efforts at courtroom administration” do not establish bias or prejudice

. ). The instances in which the judge overruled defense counsel’s objections
, or int errupted defense counsel’s examination of a witness
, appear to have o ccurred in an effort to control the evidence that would be admitted at trial. Moreover, “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion, without showing either an extrajudicial source of bias or any deep

- seate d favoritism.” Ellison , 213 Ariz. at 129, ¶ 4 0 , 140 P.3d at 912 ( citations omitted) ( internal punctuation omitted). Sanchez makes no claim of “extrajudicial source of bias” and the record fails to show the judge’s conduct in controlling the trial represen ted the “ deep

- seated favoritism” required to constitute a valid basis for claims of bias or prejudice.

¶13 Third , the record does not demonstrate the judge was prejudiced or biased when
, in explaining the deliberation schedule to the jury , he instructed it to consider the victims ’ right to attend the trial, including when it returned its verdict, as it would take time to “get everybody back into the [court]room.” The court explained it usually required 45 minutes to an hour to notify everyone of a verdict and this could pose a problem if the jury reached a verdict late in the afternoon. The court’s instruction was, under the circumstances, appropriate and practical.

¶14 In summary, the record fails to support Sanchez’s claim of judicial bias.

III. Sentencing Erro r
¶15 Finally, Sanchez argues the superior court imposed an illegal sentence when it sentenced him to natural life for first

- degree murder without first finding a “valid” aggravating circumstance. Because Sanchez did not raise this objection in the superior c ourt, we review for fundamental

error, see supra ¶ 5, although we acknowledge an illegal sentence constitutes fundamental error. See State v. Kasic , 228 Ariz. 228, 231, ¶ 15, 265 P.3d 410, 413 (App. 2011). The superior court did not, however, impose an illegal sentence when it sentenced Sanchez to natural life becaus e of his “criminal history.”

¶16 When Sanchez murdered Angel on April 27, 2011, Arizona law authorized a court to decide whether to impose a natural life or a life sentence when a person had been convicted of first

- degree murder but not sentenced to death. See generally Ariz. Rev. Stat. (“A.R.S.”) § 13

- 752(Q) (2010). Section 13

- 752(Q) provided:STATE v. SANCHEZ Decision of the Court

6 If the death penalty was not alleged or was alleged but not imposed , the court shall determine wheth er to impose a sentence of life or natural life. In determining whether to impose a sentence of life or natural life, the
court:
1. May consider any evidence introduced before sentencing or at any other sentencing proceeding.
2. Shall consider the aggra vating and mitigating circumstances listed in § 13

- 701 and any statement made by a victim.

¶17 On its face, A.R.S. § 13

- 752(Q) did not require a court to make any explicit finding of any aggravating circumstance before imposing a natural life sentence. Instea d, it a uthorized a court to “consider” any

“ evidence introduced before sentencing ” and any of the aggravating and mitigating circumstances “listed in § 13

- 701.” Id . Further, in State v. Fell
, the Arizona Supreme Court held that a guilty verdict of first

- degree murder alone authorized a natural life sentence, without any additional factual finding. 210 Ariz. 554, 558, ¶ 15, 115 P.3d 594, 598 (2005) . In so holding, the court emphasized that under Arizona’s sentencing statutes
, a court had “discretion to sentence an offender within a range

— from life to natural life

— for non

- capital first

- degree murder,” and the Legislature’s enumeration of factors a court could consider when imposing a sentence within that range did not render life imprisonment the “statuto ry maximum” for purposes of Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct

. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Fell
, 210 Ariz. at 558

- 59, ¶¶ 14

- 18, 115 P.3d at 598

- 99. Alth ough, as Sanchez notes , in 2009 the Legislature amended the sentencing statutes at issue in Fell , those amendments

— which are applicable here

— are still controlled by Fell. Here, as in Fell , the jury’s verdict alone exposed Sanchez to a possible sentence of natural life. See A.R.S. § 13

- 751(A) (2010). And, here, as in Fell , it was within the superior court’s discretion to impose a natural life sentence without making any additional factual finding s

. See A.R.S. § 13

- 752(Q)

. ¶18 Further, we reject Sanchez’s argument that the United States Supreme Court essentially overruled Fell in Miller v. Alabama
, __ U.S. __, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)
, and Graham v. Florida , 560 U.S. 48, 130 S . Ct. 2011, 176 L. Ed. 2d 825 (2010)

. In Miller
, the Supreme Court held “the Eighth Amendment forbids a sentencing scheme that mandates life inSTATE v. SANCHEZ Decision of the Court

7 prison without possibility of parole for juvenile offenders.” __ U.S. at __, 132 S. Ct. at 2469 . And, in Graha m , the Supreme Court held the Eighth Amendment “prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” 560 U.S. at 82 , 130 S. Ct. at 2034

. These cases have no impact on the continuing vitality of Fe ll

.
CONCLUSION

¶19 For the foregoing reasons, we affirm Sanchez’s convictions and sentences.