State v. Torres

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.S See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. GEORGE TORRES, JR., Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 12-24-2009 PHILIP G. URRY,CLERK BY: PJL 1 CA-CR 09-0117 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2006-173219-001 DT The Honorable John R. Ditsworth, Judge AFFIRMED Phoenix Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender Phoenix By Christopher V. Johns, Deputy Public Defender Attorneys for Appellant __________________________________________________________________ K E S S L E R, Judge ¶1 Defendant-Appellant George Torres, Jr. ( Torres ) was tried and convicted of theft of means of transportation, a class 3 felony under Arizona Revised Statutes ( A.R.S. ) section 131814(A)(1) (Supp. 2009). Counsel for Torres 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). arguable issues to raise, counsel requests search the record for fundamental error. that Finding no this Court Torres was given the opportunity to, but did not file a pro per supplemental brief. Finding no fundamental error, we affirm Torres conviction and sentence. FACTUAL AND PROCEDURAL HISTORY ¶2 We view the facts sustaining the conviction. in the light most favorable to See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). ¶3 In Department July to 2006, report Victim his contacted stolen Chevy the Phoenix Police 4x4 pickup truck. Victim s truck had unique identifying marks such as brown primer with yellow paint visible in some areas, a lift with large wide tires, and a custom grill. ¶4 resembled vehicle, Later his he television. in July stolen 2006, truck. identified some Victim When of noticed Victim his items a vehicle looked such that inside the as old an Victim also noticed that the vehicle had the same tires as his truck and contained brown primer with yellow paint showing through. The only difference between this vehicle and 2 Victim s stolen truck was that the grill had been removed. Additionally, the vehicle had a sign in its windshield that read, for sale, $700. ¶5 Victim suspected the vehicle was his stolen truck. Victim spoke to an individual living in a trailer where the vehicle was parked. Victim told the individual that he wanted to speak to the vehicle s seller. The individual indicated that seller was not there, but offered to arrange a meeting between Victim and seller. ¶6 Victim contacted police and was instructed to attempt to purchase the vehicle from the seller. Victim testified that he met the seller, Torres, to purchase his truck. questions report. about the vehicle and requested to Victim asked see its title Torres provided Victim with a title report that did not match the vehicle being sold. The police arrested Torres and took him to the station where Victim agreed to press charges. The police also impounded the vehicle. Victim s truck was released to him by police after he provided the valid title report. ¶7 During trial, Officer R. of the Phoenix Police Department testified that he met Victim at a bank to discuss purchasing his vehicle from the seller. Torres as the seller. Officer R. identified After Torres was taken into custody, Officer R. testified that Torres provided what appeared to be a 3 valid title report to the vehicle containing Torres signature. The title, however, did match the vehicle for sale. ¶8 While Torres was in custody, Officer R. testified that he read Torres his Miranda rights. Torres then told Officer R. that he planned on selling the truck to Victim to earn extra cash after being hospitalized. ¶9 A jury convicted Torres transportation, a class 3 felony. of theft of means A.R.S. § 13-1814(A)(1). superior court imposed an aggravated term of six years. of The The court considered aggravating factors such as pecuniary gain and Torres two non-dangerous prior felonies. The court gave Torres 105 days of presentence incarceration credit. ¶10 Torres timely filed his notice of appeal. R. Crim. P. 31.3. See Ariz. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, as well as A.R.S. §§ 12120.21(A)(1), (3) (2003), 13-4031 (2001), and -4033(A)(1)-(3) (Supp. 2009). DISCUSSION ¶11 This Court fundamental error. has reviewed the entire record for State v. Barraza, 209 Ariz. 441, 447, ¶ 21, 104 P.3d 172, 178 (App. 2005). Error is fundamental when it affects the foundation of the case, deprives the defendant of a right essential to his defense, or is an error of such magnitude that the defendant could not possibly have had a fair trial. 4 See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Moreover, to prevail a defendant must establish that the error caused him prejudice. Id. at 567, ¶ 20, 115 P.3d at 607. ¶12 Under A.R.S. § 13-1814(A)(1), theft of means of transportation occurs when, if, without lawful authority, the person knowingly . . . [c]ontrols another person s means of transportation with the intent to permanently deprive the person of the means of transportation. Thus, the State must show: (1) a person knowingly controlled another s means of transportation; (2) with the intent to permanently deprive that person of their means of transportation. ¶13 The State presented sufficient evidence showing Torres committed theft of means of transportation. knowingly controlled Victim s truck. First, Torres Under A.R.S. § 13-1801 (Supp. 2009), control means, to act so as to exclude others from using their property except on the defendant s own terms. Torres kept Victim s truck at a location unknown to Victim, which excluded Victim from using his truck. Additionally, because Torres kept the truck at a location unknown to Victim, Torres excluded Victim from using the truck except on Torres own terms. ¶14 Second, Torres intended to permanently deprive Victim of his means of transportation. 5 A.R.S. § 13-1814(A)(1). Both Victim and Officer R. testified that Torres attempted to sell the truck to Victim. Torres provided a title that did not match the truck to encourage the sale to Victim. Moreover, Torres told Officer R. that he intended to sell the truck because he needed money after his recent hospitalization. CONCLUSION ¶15 After meritorious careful grounds review for of reversal the of modification of the sentence imposed. record, Torres we find no conviction or The sentence was imposed within the sentencing limits, the court correctly awarded Torres 105 days of presentence incarceration credit, and Torres was represented at all stages of the proceedings. Torres was sentencing. present and his Accordingly, attorney we affirm spoke on Torres Additionally, his behalf conviction at and sentence. ¶16 Upon the filing of this decision, counsel shall inform Torres of the status of the appeal and his options. Defense counsel has no further obligations, unless upon review, counsel finds 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). On the court s own motion, Torres shall have thirty days from the date of this 6 decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review. /s/ DONN KESSLER, Judge CONCURRING: /s/ PHILIP HALL, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 7

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