Opinion
No. 1 CA-CR 13-0333
03-27-2014
STATE OF ARIZONA, Appellee, v. GABRIEL JOHN SANCHEZ, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Charles R. Krull Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
CR2011-006342-002
The Honorable Margaret R. Mahoney, Judge
AFFIRMED AS CORRECTED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Charles R. Krull
Counsel for Appellant
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Samuel A. Thumma joined. OROZCO, Judge:
¶1 Gabriel John Sanchez (Defendant) appeals his convictions and the sentences imposed for possession of burglary tools, a class six felony; theft, a class two felony; and burglary in the third degree, a class four felony.
¶2 Defendant's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a diligent search of the record, he was unable to find any arguable grounds for reversal. This court granted Defendant an opportunity to file a supplemental brief in propria persona, but he has not done so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999).
¶3 Our obligation in this appeal is to review "the entire record for reversible error." Clark, 196 Ariz. at 537, ¶ 30, 2 P.2d at 96. Finding no reversible error, we affirm Defendant's convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶4 On May 4, 2011, Phoenix Police Officers H. and P. responded to a call at a Best Buy store. When they arrived at the store, they observed a white Ford pickup truck backed into one of the store's loading docks. Officer H. noticed a light on within the store, a person moving behind the truck, and a male running inside the store. The officers first took J.Y. into custody, a female who was hiding behind the truck, and placed her in the back of their patrol car. The officers then focused their attention on the individual they noticed inside of the store and requested more police units for assistance, including a K-9 unit. As the additional units began to arrive, Defendant came to the loading dock, put his hands up, and approached Officer H., who took him into custody. After securing the area and finding no other suspects inside the store, Officer H. established the pickup truck's bed contained seven large-screen televisions, and the truck's backseat was "completely loaded with electronic-type items," such as laptops and games. Moreover, two more fifty-five inch televisions were just behind the truck on the loading dock and four more televisions were just inside the rolling doors. Officer H. testified that the televisions "looked like they were positioned there and ready to be loaded." Officer H. also testified that, just behind the truck, a large hole had been cut into the loading dock's rolling door.
¶5 Another Phoenix Police Officer, Officer N., initiated an interview with Defendant, whom officers placed in the back of Officer N.'s squad car. Officer N. testified he removed a pair of black gloves and a small flashlight from Defendant's possession prior to his interview. Officer N. also advised Defendant of his Miranda rights. When asked if he burglarized the store, Defendant nodded his head up and down as if to gesture "yes," but he verbally responded "no comment." Officer N. then took Defendant to the precinct for booking.
¶6 At the station, Defendant stated he used the cutting torch to cut the door open earlier in the evening intending to return later that evening to commit burglary. A later search of the truck revealed a welding instrument, welding goggles, bolt cutters, and a black "beanie-type" face mask. The store's assistant manager provided the officers with a list of the stolen items and their retail price.
¶7 Defendant was subsequently charged with: (1) possession of burglary tools, a class six felony; (2) theft, a class two felony; and (3) burglary in the third degree, a class four felony. The State also filed allegations of aggravating circumstances, prior non-historical felony convictions, and two historical non-dangerous felony convictions.
¶8 At trial, a Best Buy assistant manager testified that her list of missing items included items that were not on the truck but placed within the store's bay, which were classified as in the process of "being taken." She scanned the items' UPC and handwrote each items' price on the list. The assistant manager testified that she was unsure if the listed prices were the prices that customers would have paid for the merchandise that week but that the handwritten prices were the result of research based on the items' UPC numbers. Based on this testimony, Defendant made a Rule 20 motion regarding the theft. Defendant first argued that the list contained two televisions that never left the store's bay. Second, Defendant argued the prices in the list provided to the police were unreliable given the propensity of a store to place items on sale and engage in price matching. The trial court denied Defendant's motion holding that sufficient evidence was presented to support the theft charge and that fair market value was a question for the jury.
¶9 The jury found Defendant guilty on all counts. At sentencing, Defendant stipulated to two prior felony convictions. The trial court sentenced Defendant to 3.75 years' imprisonment for count one; 15.75 years' imprisonment for count two; and ten years' imprisonment for count three. Each sentence was to be served concurrent with one another and all sentences were to run concurrent with a separate case, CR2011-142899-001. Defendant received 623 days of pre-sentence incarceration credit. Additionally, the trial court ordered Defendant to submit to DNA testing and required him to pay the cost of the testing.
¶10 Defendant timely appealed. 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 (2003), and 13-4031 (2010) and -4033.A.1 (2010).
DISCUSSION
¶11 We review the sufficiency of evidence "in the light most favorable to sustaining the conviction . . . ." State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981). Any reasonable inferences are resolved against the defendant. Id. A reversal of a conviction based on insufficiency of evidence requires a clear showing that there is not sufficient evidence to support the jury's conclusion, under any hypothesis whatsoever. State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d 43, 46 (App. 2004) (stating that we will not substitute our judgment for that of the jury).
I. Count One: Possession of Burglary Tools
¶12 A person is guilty of possession of burglary tools if he possesses any "explosive, tool, instrument or other article adapted or commonly used for committing any form of burglary." A.R.S. § 13-1505 (2009).
¶13 Here, the truck Defendant was driving contained a welding torch, welding goggles, bolt cutters, and a face mask. A hole had been cut into the loading dock's rolling door, which Defendant admitted to having cut.
¶14 Consequently, we find substantial evidence supports the jury's verdict finding Defendant guilty of possession of burglary tools.
II. Count Two: Theft
¶15 A person commits theft if he, without lawful authority, knowingly controlled another's property with the intent to deprive the other person of such property. A.R.S. § 13-1802.A.1 (Supp. 2013).
¶16 First, the "knowing" element is satisfied because Defendant admitted to having used the welding torch to cut a hole into the loading dock's rolling door and intended to return to burglarize the store later. Second, Defendant was in control of Best Buy's property because he removed several items from the store and placed them in the truck he was driving. Moreover, there were other items that had been moved to the loading dock behind the truck.
¶17 Thus, sufficient evidence was presented to support the jury's guilty verdict for the theft charge.
III. Count Three: Burglary in the Third Degree
¶18 To convict Defendant of burglary in the third degree, the State was required to prove that (1) Defendant entered or remained unlawfully, (2) in or on a fenced commercial yard, (3) with the intent to commit any theft or any felony therein. A.R.S. § 13-1506.A.1 (2010).
¶19 Defendant entered the store in the middle of the night through a hole he created in the loading dock earlier in the evening. Several witness identified the Defendant as the person arrested at the scene of the crime. Furthermore, two Best Buy managers testified Defendant was not an employee of the store. Defendant also admitted he planned to burglarize the store. Although Defendant did not complete the theft he may still be guilty of burglary because burglary does not require the successful completion of the theft. See State v. Bottoni, 131 Ariz. 574, 575, 643 P.2d 19, 20 (App. 1982) ("the crime of burglary is complete when entrance to the structure is made with the requisite criminal intent.").
¶20 We find substantial evidence was presented to support the jury's verdict finding Defendant guilty of burglary in the third degree.
IV. Sentencing Order Correction
¶21 The court ordered Defendant to submit to DNA testing and pay the cost of the testing pursuant to A.R.S. § 13-610 (2010). While A.R.S. § 13-610.A authorizes the department of corrections to "secure a sufficient sample of blood or other bodily substances for [DNA] testing," the statute does not identify who should incur the costs of testing. See, e.g., State v. Reyes, 232 Ariz. 468, 471, ¶ 9, 307 P.3d 35, 38 (App. 2013).
¶22 Although Defendant could be fined as part of his sentence, the trial court's order that Defendant pay the DNA testing fee was not a fine under A.R.S. § 13-801.A. for the commission of felonies. See id. at 472, ¶ 13, 307 P.3d at 39. Because § 13-610 does not require Defendant to incur the cost of the DNA testing, there is no basis for the cost to be imposed. See id. at ¶ 14. Accordingly, we vacate the portion of the sentencing order requiring Defendant to pay for DNA testing.
CONCLUSION
¶23 We have read and considered counsel's brief and have searched the entire record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentences imposed were within statutory limits. Furthermore, based on our review of the record, there was sufficient evidence for the jury to find that Defendant committed the offenses for which he was convicted.
¶24 After the filing of this decision, counsel's obligations pertaining to Defendant's representation in this appeal have ended. Counsel need do no more than inform Defendant of the status of the appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. Accordingly, Defendant's convictions and sentences are affirmed.