State v. Gonzales ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
ANGELIQUE GONZALES, Appellant.
No. 1 CA-CR 14-0345
FILED 6-9-2015
Appeal from the Superior Court in Apache County
No. S0100CR2013-00020, S0100CR2013-00244 (Consolidated)
The Honorable Gloria Kindig, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Adriana M. Zick
Counsel for Appellee
Emily Danies, Tucson
By Emily Danies
Counsel for Appellant
STATE v. GONZALES
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Samuel A. Thumma and Judge Donn Kessler joined.
W I N T H R O P, Presiding Judge:
¶1 Angelique Gonzales (“Appellant”) appeals the superior
court’s finding that she violated a condition of her supervised probation
and her subsequent placement on intensive probation. She argues the court
abused its discretion in finding she violated her probation when she was
arrested for committing new offenses. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 In November 2013, Appellant pled guilty to one count of
aggravated assault, a class three felony, in CR2013–00020, and one count of
failure to appear in the first degree, a class five felony, in CR2013–00244. In
exchange, the State dismissed all remaining counts in both cases and a third
case in its entirety.
¶3 The superior court placed Appellant on concurrent terms of
five years’ probation in CR2013–00020 and three years’ probation in
CR2013–00244. The court imposed, and Appellant signed and agreed to
abide by, Uniform Conditions of Supervised Probation, which included
Conditions 1 and 13. Condition 1 provided: “I will maintain a crime-free
lifestyle, by obeying all laws, and not engaging or participating in any
criminal activity.” Condition 13 provided: “I will obtain written approval
of the [Adult Probation Department (“APD”)] prior to associating with
anyone I know who has a criminal record. I will not knowingly associate
with any person engaged in criminal behaviors.”
¶4 On February 27, 2014, Appellant’s APD filed a petition to
revoke her probation, alleging Appellant had violated (1) Condition 1 when
1 We view the facts in the light most favorable to sustaining the
superior court’s determination, and resolve all reasonable inferences
against Appellant. See State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106,
111 (1998).
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STATE v. GONZALES
Decision of the Court
she was arrested by the Apache County Sheriff’s Department on February
12, 2014, for two counts of trafficking in stolen property, and (2) Condition
13 when she was arrested with a co-defendant, O.W., who was also engaged
in criminal activity.
¶5 At the April 15, 2014 probation violation hearing, APD Officer
Slade testified that, when Appellant was placed on probation, APD Officer
Ross reviewed the written conditions of probation (including Conditions 1
and 13) with Appellant, who acknowledged she understood those
conditions by initialing and signing the documentation. APD Officer Slade
also testified that, following her placement on probation, Appellant had not
obtained written approval to associate with anyone known to have a
criminal record or engaging in criminal activity.
¶6 Officer Slade acknowledged no probation condition
specifically prohibited a probationer from being arrested, but stated
Condition 1, requiring “a crime-free lifestyle,” is triggered when a
probationer is arrested and a police report is forwarded to the probation
department, or when criminal charges are filed. He explained the
accompanying police report supported the violation allegation, and it was
not the APD’s practice to allege a Condition 1 violation unless a police
report accompanied the arrest record. With regard to Condition 13, Officer
Slade alleged Appellant had associated with O.W., with whom she was
engaged in criminal activity when the two women were arrested.
¶7 Deputy Weller of the Apache County Sheriff’s Office testified
that, on February 12, 2014, he arrested Appellant for two counts of
trafficking in stolen property and O.W. for theft. In investigating the case,
Deputy Weller had obtained photographs from pawnshops in Pinetop and
Holbrook that showed Appellant and O.W. pawning stolen property.2 On
cross-examination, Deputy Weller acknowledged he had no evidence
Appellant had reason to know the property was stolen.
¶8 Appellant did not testify, but her counsel argued in closing
that the mere fact a probationer is arrested is not a probation violation, and
the State had failed to demonstrate anything beyond the fact of her arrest
to show a violation of Condition 1. Defense counsel contended that,
because an arrest is based on probable cause, Appellant’s arrest was
2 The police report and photographs were not made a part of the
record on appeal. We presume any missing portions of the record support
the superior court’s ruling. State v. Miles, 211 Ariz. 475, 477 n.1, ¶ 4, 123
P.3d 669, 671 n.1 (App. 2005).
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STATE v. GONZALES
Decision of the Court
insufficient to meet the preponderance of the evidence standard required
for the court to find a probation violation. With regard to Condition 13,
defense counsel maintained that being arrested with O.W. was insufficient
to prove she associated with someone engaged in criminal behavior.
Moreover, counsel argued the court could not find that the photographs
depicting Appellant and O.W. pawning items depicted criminal activity,
absent further information the property had been stolen and Appellant was
aware it was stolen.3
¶9 At the conclusion of the hearing, the superior court found
Appellant violated Condition 1 when she was arrested on February 12,
2014.4 At a disposition hearing on April 28, 2014, the court placed
Appellant on intensive probation for the same length of time it had
previously imposed supervised probation, excluding the time from
February 12 to April 28, 2014. Consequently, Appellant’s probation had a
revised expiration date of February 13, 2019.
¶10 We have jurisdiction over Appellant’s timely appeal. See
Ariz. Const. art. 6, § 9; Ariz. Rev. Stat. (“A.R.S.”) §§ 12–120.21(A)(1) (2003),
13–4031 (2010), 13–4033(A)(3) (2010).
ANALYSIS
¶11 Appellant contends the superior court erred in finding, by a
preponderance of the evidence, that she violated Condition 1 of her
conditions of probation. She argues her arrest for new offenses should not
have triggered a “per se” violation of her probation.5
3 In her opening brief, Appellant characterizes defense counsel’s
arguments as “testimony.” Arguments or statements of counsel are not
evidence. See State v. Abney, 103 Ariz. 294, 295, 440 P.2d 914, 915 (1968).
4 The court, however, found no violation of Condition 13.
5 Appellant states the criminal case resulting from her arrest in
February 2014 was subsequently dismissed without prejudice upon the
State’s motion. Although Appellant argues this dismissal means her arrest
was “mistaken,” and “based on incorrect assumptions by the police,” the
State’s decision to seek voluntary dismissal of the new charges does not
necessarily indicate the arrest lacked the necessary probable cause or the
police relied on “incorrect assumptions.” The State may have sought
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STATE v. GONZALES
Decision of the Court
¶12 Probation revocation proceedings must be fundamentally
fair, but are not subject to the requirements of a criminal trial. State v.
Sanchez, 19 Ariz. App. 253, 254, 506 P.2d 644, 645 (1973). A court may
consider any reliable evidence not legally privileged, including hearsay. See
Maricopa Cnty. Juv. Action No. J-83341-S, 119 Ariz. 178, 182, 580 P.2d 10, 14
(App. 1978). In general, we review for an abuse of discretion a superior
court’s determinations with respect to probation revocation proceedings.
See id.; State v. Portis, 187 Ariz. 336, 338, 929 P.2d 687, 689 (App. 1996). The
State has the burden to establish a probation violation by a preponderance
of the evidence. State v. Moore, 125 Ariz. 305, 306, 609 P.2d 575, 576 (1980);
Ariz. R. Crim. P. 27.8(b)(3). We will uphold the court’s finding of a
probation violation unless that finding is arbitrary or unsupported by any
theory of the substantial evidence. Moore, 125 Ariz. at 306, 609 P.2d at 576.
It is for the superior court to resolve any conflicts in the evidence and to
assess the credibility of witnesses. State v. Thomas, 196 Ariz. 312, 313, ¶ 3,
996 P.2d 113, 114 (App. 1999).
¶13 Under the facts presented here, the superior court did not
abuse its discretion in concluding Appellant’s arrest for trafficking in stolen
property demonstrated she was not living “a crime-free lifestyle,” as
required by Condition 1. Officer Slade testified the allegation of a
Condition 1 violation was based on Appellant’s arrest, coupled with the
statements set forth in the police report, and he confirmed he would not
have filed a Condition 1 allegation unless he had a supporting police report.
Deputy Weller testified that Appellant and O.W. were arrested together in
St. Johns shortly after a crime had reportedly occurred. The subsequent
investigation of the reported crime led to O.W.’s arrest for theft and
Appellant’s arrest for two counts of trafficking in stolen property after the
deputy obtained photos of the two women pawning reportedly stolen
property at pawn shops in Pinetop and Holbrook. Viewing these facts in
the light most favorable to affirming, see Greene, 192 Ariz. at 436, ¶ 12, 967
P.2d at 111, a factfinder could reasonably infer that Appellant had sold the
property to two different pawnshops in communities outside of St. Johns in
an effort to make the property more difficult to trace, indicating she either
dismissal for a variety of reasons unrelated to whether Appellant
committed the acts alleged. Moreover, the charges were dismissed without
prejudice. Accordingly, the criminal case’s dismissal after Appellant was
placed on intensive probation does not impact whether the superior court
properly found the State demonstrated by a preponderance of the evidence
that she violated her probation.
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STATE v. GONZALES
Decision of the Court
knew or acted in a reckless manner as to whether the property was stolen.6
Thus, on this record, the superior court properly could have found that
Appellant’s arrest, coupled with the testimony of Officer Slade and Deputy
Weller, demonstrated by a preponderance of the evidence that Appellant
had violated Condition 1. See State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214,
1219 (1984) (recognizing this court will affirm if the ruling was correct for
any reason, even if that reason was not considered by the superior court).
Accordingly, the superior court did not abuse its discretion in finding
Appellant violated the terms of her probation.
CONCLUSION
¶14 The superior court’s finding of a probation violation and
order placing Appellant on intensive probation are affirmed.
:ama
6 The State was not necessarily required to show Appellant knew the
pawned property was stolen; instead, the State was required to show she
“recklessly traffic[ked] in the property of another that has been stolen.”
A.R.S. § 13-2307(A) (2010); see also A.R.S. § 13-105(10)(c) (Supp. 2014)
(“’Recklessly’ means . . . that a person is aware of and consciously
disregards a substantial and unjustifiable risk that the result will occur or
that the circumstance exists.”); State v. Noriega, 144 Ariz. 258, 259, 697 P.2d
341, 342 (App. 1984) (advocating a subjective test in which the State must
prove the defendant knew or was aware of a substantial risk that the
property was stolen). Noriega makes clear it is a lesser burden to prove
recklessness than to prove a defendant acted knowingly. See State v. Hurley,
197 Ariz. 400, 403, ¶ 14, 4 P.3d 455, 458 (2000) (“[R]ecklessly is a lesser-
included mental state of knowingly.” (citation omitted)); State v. DiGiulio,
172 Ariz. 156, 161, 835 P.2d 488, 493 (App. 1992) (“Even though second
degree trafficking requires the state to show that defendant acted recklessly,
that culpable mental state was established by proof of a higher mental state,
that he acted knowingly.” (citation omitted)).
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