State v. Silva
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THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
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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.
DAVID SILVA,
Appellant.
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DIVISION ONE
FILED: 09/27/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-CR 10-0368
DEPARTMENT C
MEMORANDUM DECISION
(Not for Publication –
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-145410-001DT
The Honorable George H. Foster, Jr., Judge
CONVICTION AFFIRMED, SENTENCING REMANDED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix
Bruce F. Peterson, Legal Advocate
By Consuelo M. Ohanesian, Deputy Legal Advocate
Attorneys for Appellant
Phoenix
K E S S L E R, Judge
¶1
David
Silva
(“Appellant”)
filed
this
appeal
in
accordance with Anders v. California, 386 U.S. 738 (1967), and
State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following his
conviction
of
theft
of
means
of
transportation,
a
class
3
felony, under Arizona Revised Statutes (“A.R.S.”) section 131814(A)(5) (2010).1
¶2
Finding
counsel
no
requested
fundamental error.
arguable
that
issues
this
Court
to
raise,
search
the
Appellant’s
record
for
Appellant was afforded the opportunity to
file a pro per supplemental brief and presented the following
issues:
(1)
insufficient
evidence
at
trial;
(2)
receipt
of
excessive sentence; and (3) offer of an improper plea bargain.2
Our review of the record revealed a non-frivolous argument that
the trial
court fundamentally erred in failing to conduct a
colloquy upon defense counsel’s stipulation to the existence of
Appellant’s prior felony convictions.
Ariz. R. Crim. P. 17.6;
State v. Morales, 215 Ariz. 59, 60, ¶ 1, 157 P.3d 479, 480
(2007).
For the reasons that
follow,
we affirm
Appellant’s
conviction and remand for sentencing.
FACTUAL AND PROCEDURAL HISTORY
¶3
On July 11, 2009, Officers M. and H. were patrolling
the area around 67th Avenue and Bethany Home Road.
At 1:30
a.m.,
subject
Officer
H.
observed
one
1
male
and
one
female
We cite the current versions of the applicable statutes
when no revisions material to this decision have since occurred.
2
Appellant also filed a Motion for Supplemental Briefing of
Issues. We deny that motion, but address the issues raised in
that motion.
2
walking northbound.
The male subject looked back to a parking
lot to the south and shouted “5-0’s coming.”3
In response,
Officers M. and H. pulled into the south parking lot where the
warning was directed.
¶4
Officer H. testified that he observed Appellant exit
the driver’s side of a black Mercedes-Benz SUV, close the door,
and walk briskly to a white sedan parked a few spaces away.
Appellant crouched down near the sedan’s front driver’s side
tire, and a female exited the passenger side of the SUV.
The
officers got out of their car, initiated contact, performed a
consensual
pat-down
search
of
Appellant,
and
requested
both
Appellant and the female to sit on a parking block.
¶5
Officer
H.
information to dispatch.
provided
the
SUV’s
license
plate
A search revealed that the vehicle had
been reported stolen by its owner on July 3, 2009.
Appellant
was subsequently taken into custody.
¶6
During a search of the immediate area the officers
located the keys to the SUV on the wheel well of the sedan next
to where Appellant had been crouching.
Police photographed the
scene and dusted the SUV for prints.
None of the prints were
later matched to Appellant.
¶7
The SUV’s registered owner, F.D., arrived at the scene
3
The term “5-0” is slang for police.
from the television show “Hawaii 5-0.”
3
The expression arose
to pick up his vehicle.
F.D. testified that when he arrived he
saw no visible damage to the exterior or interior of the SUV.
The only damage noted was to the key itself and the plastic ring
located around the ignition switch.
¶8
Appellant was taken to the Glendale city jail where
the officers read him his
Miranda
rights.
Appellant denied
being inside of the SUV, and claimed that he was crouching next
to the sedan in order to dump his “G.”4
¶9
In January 2010, a jury convicted Appellant of theft
of means of transportation, and he was sentenced as a category
three repetitive offender
to a mitigated term of
Appellant filed a timely appeal.
ten
years.
We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, as well as
A.R.S. sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 4033(A)(1) (2010).
ANALYSIS
¶10
In an Anders appeal, this Court must review the entire
record for fundamental error.
State v. Richardson, 175 Ariz.
336, 339, 857 P.2d 388, 391 (App. 1993).
Fundamental error is
“error going to the foundation of the case, error that takes
from the defendant a right essential to his defense, and error
of such magnitude that the defendant could not possibly have
received a fair trial.”
4
State v. Henderson, 210 Ariz. 561, 567,
The term “G” is slang for methamphetamine.
4
¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142
Ariz. 88, 90, 688 P.2d 980, 982 (1984)).
the
defendant
must
also
demonstrate
To obtain a reversal,
that
the
error
caused
prejudice.
Id. at ¶ 20.
On review, we view the facts in the
light
favorable
sustaining
most
to
the
jury’s
resolve all inferences against the defendant.
verdict
and
State v. Fontes,
195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
I. PRIOR CONVICTION STIPULATION
¶11
“When a defendant’s sentence is enhanced by a prior
conviction, the existence of the conviction must be found by the
court.”
is
Morales, 215 Ariz. at 61, ¶ 6, 157 P.3d at 481.
typically
achieved
through
a
hearing
in
which
the
This
State
provides a certified copy of the conviction as well as proof
that the defendant is the person identified in the document.
Id.
Such
a
hearing
is
not
necessary,
however,
stipulates to the existence of the conviction.
if
counsel
Id. at ¶¶ 7, 9.
Instead, Arizona Rule of Criminal Procedure 17.6 requires that
the court conduct a plea-type colloquy.
¶12
Id. at ¶ 9.
Although the omission of the Rule 17.6 colloquy is
considered
fundamental
resentencing.
error,
it
does
not
always
Id. at 62, ¶ 11, 157 P.3d at 482.
necessitate
“The colloquy
serves to ensure that a defendant voluntarily and intelligently
waives
the
conviction.
right
to
a
trial
on
the
issue
of
the
prior
Given this purpose, . . . prejudice generally must
5
be established by showing that the defendant would not have
admitted the fact of the prior conviction had the colloquy been
given.”
Id.
Where conclusive evidence of prior convictions is
not in the record, remand for a determination of prejudice is
appropriate.
State v. Geeslin, 221 Ariz. 574, 579, ¶ 19, 212
P.3d 912, 917 (App. 2009), vacated in part on other grounds, 223
Ariz. 553, 225 P.3d 1129 (2010).
¶13
In this case, Appellant stipulated to two prior felony
convictions
in
exchange
for
a
dismissal
of
the
aggravation
allegation that the crime was committed while on release.
Based
on the stipulation and possibly two earlier felony convictions
mentioned in the presentence investigation report, Appellant was
sentenced as a category three repetitive offender.5
§§
13-105(22)(d)
(2010),
-703(C)
(Supp.
2010).
See A.R.S.
The
State,
however, did not prove any of the alleged felony convictions,
and the trial court failed to conduct the required colloquy.
5
The prior convictions read into the record by the State at
sentencing were: (1) Cause Number CR 2005-129440-001, criminal
trespass in the first degree, a class 6 designated felony; and
(2) Cause Number CR 2003-014191-001, criminal trespass in the
first degree, a class 6 designated felony.
It is possible the
2003 conviction did not qualify as a prior historical felony
based on time of occurrence. See A.R.S. § 13-105(22)(c). It is
unclear whether the trial court relied on any other prior
convictions since it referred to only the two stipulated
convictions in the sentencing minute entry.
6
Given the lack of any record disproving prejudice,6 we remand to
the trial court to determine whether Appellant understood the
rights he was waiving and the consequences of the stipulation.
On
remand,
the
court
should
also
consider
whether
Appellant
qualified as a category three repetitive offender per A.R.S. §§
13-105(22) and -703(C).
If prejudice is shown, or he is not a
category three repetitive offender, Appellant’s sentence must be
vacated and he must be resentenced.
The State, however, will be
given the opportunity to prove the prior convictions at that
time.
State v. Osborn, 220 Ariz. 174, 179, ¶ 14, 204 P.3d 432,
437 (App. 2009).
II. SUFFICIENCY OF THE EVIDENCE
¶14
Appellant
argues there was insufficient evidence to
support his conviction of theft of means of transportation.
In
reviewing a claim of the sufficiency of the evidence, we review
the
evidence
presented
at
trial
“only
to
determine
substantial evidence exists to support the jury verdict.”
if
State
v. Stroud, 209 Ariz. 410, 411, ¶ 6, 103 P.3d 912, 913 (2005).
Substantial evidence has been described as more than a “mere
scintilla and is that which reasonable persons could accept as
6
“[R]emand has not been ordered in Rule 17 cases only where,
as in Morales, the record on appeal was sufficient to disprove
prejudice.”
Carter, 216 Ariz. at 291, ¶ 22, 165 P.3d at 692
(emphasis added).
Here, the record contains the “State’s
Allegation of Historical Priors,” a statement of the stipulated
convictions read by the State at sentencing, and the presentence
report.
7
sufficient
doubt.”
to
support
a
guilty
verdict
beyond
a
reasonable
State v. Hughes, 189 Ariz. 62, 73, 938 P.2d 457, 468
(1997) (internal quotation marks omitted).
“Reversible error
based on insufficiency of the evidence occurs only where there
is
a
complete
conviction.”
absence
of
probative
facts
to
support
the
State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d
610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25,
555 P.2d 1117, 1118-19 (1976)).
¶15
There is evidence in the record to support the jury’s
conviction
of
Appellant
for
the
crime
of
theft
of
means
of
transportation.
To obtain a conviction, the State must show
that
(1)
Appellant:
without
lawful
authority;
(2)
knowingly
controls; (3) “another person’s means of transportation”; (4)
“knowing or having reason to know that the property is stolen.”
A.R.S. § 13-1814(A)(5).
¶16
First,
there
is
sufficient
evidence
to
support
the
jury’s finding that the vehicle belonged to another person and
was taken without lawful authority.
F.D. testified that he was
the registered owner of the black Mercedes-Benz SUV, that the
vehicle
was
taken
without
his
permission,
and
that
it
was
reported stolen on July 3, 2009.
¶17
Second,
while
Appellant
controlled
available.
The
there
the
evidence
is
vehicle,
includes
8
no
direct
evidence
circumstantial
testimony
that
evidence
that
is
Appellant
exited the driver’s seat of the SUV and crouched down near an
adjacent sedan’s front driver’s side tire, and that the keys to
the stolen SUV were located on the wheel well of the sedan next
to where Appellant had been crouching.
Based on this testimony
the jury could reasonably conclude that Appellant had been in
possession of the keys to the stolen SUV, that he had placed
them in the wheel well of the sedan, and that his attempt to
hide them was an assertion of control.
¶18
The
jury
could
find
the
final
element,
knowing
or
having reason to know that the property is stolen, based on the
permissible inferences relating to theft.7
“Proof of possession
of property recently stolen, unless satisfactorily explained,
may give rise to an inference that the person in possession of
the property was aware of the risk that it had been stolen or in
some
way
participated
in
its
theft.”
A.R.S.
§
13-2305(1)
(2010); State v. Alfaro, 127 Ariz. 578, 580, 623 P.2d 8, 10
(1980) (invoking the inference requires unexplained possession
and recently stolen property).
The evidence presented at trial
established that the SUV was reported stolen eight days prior to
Appellant’s arrest.
See State v. Jones, 125 Ariz. 417, 420, 610
P.2d 51, 54 (1980) (finding two months to be sufficiently recent
to
“trigger
the
statutory
inference”).
7
In
addition,
“[t]he
“The inferences set forth in § 13-2305 apply to any
prosecution under subsection A, paragraph 5 of this section.”
A.R.S. § 13-1814(B).
9
record
also
discloses
explanation
of
Alfaro,
Ariz.
127
no
evidence
[A]ppellant’s
at
580,
which
possession
623
P.2d
at
might
of
constitute
the
10.
an
property.”
Based
on
this
information, we find there was sufficient evidence to trigger
the statutory inference.
¶19
In
comparing
the
evidence
in
the
record
to
the
elements listed in the statutes, we find there was sufficient
evidence to support the jury’s conviction of Appellant for theft
of means of transportation.
III. RECEIPT OF EXCESSIVE SENTENCE
Appellant received a mitigated term of ten years.8
¶20
He
asserts that his sentence is excessive.
¶21
“A trial court has broad discretion to determine the
appropriate penalty to impose upon conviction, and we will not
disturb
a
sentence
[Appellant’s]
is,
that
is
unless
it
abused its discretion.”
within
clearly
the
statutory
appears
that
limits,
the
as
court
State v. Cazares, 205 Ariz. 425, 427, ¶
6, 72 P.3d 355, 357 (App. 2003).
As the court duly considered
the evidence presented at sentencing, we do not believe that it
abused its discretion by imposing a mitigated sentence subject
8
Appellant was sentenced as a category three repetitive
offender under A.R.S. § 13-703(J). The mitigated sentence for a
class 3 felony for a category three repetitive offender is 7.5
years, the presumptive term is 11.25 years, and the aggravated
sentence is 25 years. A.R.S. § 13-703(J).
10
to a redetermination on remand concerning the stipulation and
other alleged prior felonies.
See supra ¶ 13.
IV. IMPROPER PLEA BARGAIN
¶22
Appellant originally faced two separate trials for CR
2009-145410-001 (theft of means of transportation) and CR 2008159532-001
violence).9
(domestic
Appellant
claims
that
the
prosecution erred in combining the charges for one plea bargain.
He argues he should have received a separate plea for bargain
the charge of theft of means of transportation.
¶23
“It is well settled that criminal defendants have no
constitutional right to a plea agreement and the state is not
required to offer one.”
917
P.2d
1214,
1222
State v. McKinney, 185 Ariz. 567, 575,
(1996),
superseded
by
statute
on
other
grounds as noted in State v. Martinez, 196 Ariz. 451, 999 P.2d
795
(2000).
“No
prosecution
of
prosecution
is
constitutional
all
not
criminal
tainted
law
with
provision
prevents
violators,
invidious
so
long
the
full
as
such
discrimination.”
Murgia v. Municipal Court, 540 P.2d 44, 46-47 (Cal. 1975).
With
no right to a plea bargain, and no indication in the record of
prosecutorial misconduct, we find Appellant’s allegation to be
without merit.
9
CR 2008-159532-001 was dismissed without prejudice prior to
jury selection.
11
CONCLUSION
¶24
For
the
foregoing
reasons,
we
affirm
Appellant’s
conviction and remand for further proceedings consistent with
this decision.
/s/
DONN KESSLER, Judge
CONCURRING:
/s/
PATRICIA A. OROZCO, Presiding Judge
/s/
MICHAEL J. BROWN, Judge
12
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