State v. Curiel
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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. 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. JAVIER CURIEL, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 04/24/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CR 11-0509 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR201100181 The Honorable Andrew W. Gould, Judge CONVICTIONS AND SENTENCES AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Sharmila Roy Attorney for Appellant Phoenix Laveen J O H N S E N, Judge ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following Javier Curiel s convictions of theft of means of transportation, theft, a Class 1 misdemeanor. a Class 3 felony, and Curiel s counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Curiel was given the supplemental brief but did not do so. court to search the record for opportunity to file a Counsel now asks this fundamental error. After reviewing the entire record, we affirm Curiel s convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2 break In mid-January 2011, Curiel arranged with the victim to down several old resulting scrap metal. 1 trucks and split the value of the When Curiel did not return, the victim hired others to do the work. Curiel arrived while the victim and the others were at work cutting the metal. The victim told Curiel that the deal was off because of Curiel s delay, that he already had hired a replacement for Curiel and that Curiel would not share the proceeds from the scrap metal. 1 Curiel then left, Upon review, we view the facts in the light most favorable to sustaining the jury s verdicts and resolve all inferences against Curiel. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 only to return a short time later with two others. He exited his truck, walked directly to the victim s truck, got in and drove away. ¶3 Curiel was arrested seven days later. He told the arresting officer that he knew where the [victim s] vehicle was but wasn t going to say and that the reason why they took the vehicle was because [the victim] doesn t pay his employees. The victim s truck eventually was recovered, but the victim s tool box and tools that had been in the truck were never found. ¶4 Curiel was charged with theft transportation and theft of the tool box. found Curiel mitigation guilty hearing, of both the counts court as of means of At trial, the jury charged. sentenced After Curiel to a the presumptive term of three and one half years for theft of means of transportation, to run concurrently with a six-month sentence for theft, with 170 days presentence incarceration credit. ¶5 to Curiel timely appealed. Article Arizona 6, Revised Section 9, Statutes of We have jurisdiction pursuant the ( A.R.S. ) Arizona Constitution, sections and 12-120.21(A)(1), 13-4031 and -4033 (West 2012). 2 2 Absent material revisions after the date offense, we cite a statute s current version. 3 of an alleged DISCUSSION ¶6 was The record reflects Curiel received a fair trial. represented by counsel at all stages of the proceedings against him and was present at all critical stages. held appropriate pretrial hearings. It did He The court not conduct a voluntariness hearing; however, the record does not suggest a question about the voluntariness of Curiel s statements to police. See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977); State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974). ¶7 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. properly comprised of eight members. The The jury was court properly instructed the jury on the elements of the charges, the State s burden of proof and the necessity of a unanimous verdict. The jury returned a unanimous verdict, which was confirmed by juror polling. The court received and considered a presentence report, addressed its contents during the sentencing hearing and imposed legal sentences for the crimes of which Curiel was convicted. CONCLUSION ¶8 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. 4 ¶9 After the filing of this decision, defense counsel s obligations pertaining to Curiel s representation in this appeal have ended. Defense counsel need do no more than inform Curiel of the outcome of this appeal and his future options, 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, Curiel has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Curiel has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ LAWRENCE F. WINTHROP, Chief Judge 5
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