State v. Sanchez ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JESUS DANIEL MOLLINEDA SANCHEZ,
Appellant.
No. 1 CA-CR 15-0335
FILED 8-2-2016
Appeal from the Superior Court in Maricopa County
No. CR 2013-445240-001
The Honorable Dean M. Fink, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Janelle A. McEachern, Chandler
By Janelle A. McEachern
Counsel for Appellant
STATE v. SANCHEZ
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.
O R O Z C O, Judge:
¶1 Jesus Daniel Mollineda Sanchez appeals his conviction and
the resulting sentence for trafficking in stolen property in the second
degree, a class three felony. Pursuant to Anders v. Cal., 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297 (1969), Sanchez’s counsel has filed a brief
indicating she searched the entire record and finding no arguable question
of law, asks this court to review the record for fundamental error. Sanchez
was given the opportunity to file a supplemental brief in propria persona,
but has not done so. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On May 11, 2013, Validity employee J.J. noticed that several
computers were missing from Validity’s office. J.J.’s co-worker, R.D.,
searched the internet for the missing computers using their serial numbers.
R.D. found one of Validity’s computers for sale on E-Bay for $540. The
E-Bay seller also listed the other missing computers. R.D. then discovered
that the seller was connected to the Youtube account of Sanchez, who
resided in Phoenix. Validity employees reported this information to the
police.
¶3 Detective Goldman with the Phoenix Police Department
learned that Sanchez cleaned Validity’s office the night before J.J. noticed
the computers were missing. Detective Goldman located Sanchez, who
explained that he had already sold one of the computers on E-Bay,1 but the
other four computers remained in his storage unit. Sanchez refused to tell
Detective Goldman how he obtained the computers. Detective Goldman
returned the computers to Validity, but the hard drives were missing.
Sanchez subsequently returned the hard drives.
1 The sold computer was later returned by the buyer.
2
STATE v. SANCHEZ
Decision of the Court
¶4 Sanchez was charged with burglary in the third degree and
trafficking in stolen property.2 At trial, Sanchez testified that he received
the computers from his manager, Hilda,3 who he thought had purchased
the computers from a bulk electronics auction. Sanchez, who was familiar
with fixing computers and electronics, agreed to sell the computers for
Hilda, and he would keep a percentage of the profits. Sanchez testified he
never thought that Hilda could be involved in theft, but he also did not ask
if the computers were stolen.
¶5 J.J. testified that the hardware for each of the five stolen
computers was valued between $1000 and $1750 and that the value of the
data stored on the machines was between $100 to $200 million. J.J. further
testified that Validity purchased $6000 worth of replacement computers
and twenty designers were left with no work for two weeks, causing the
company to suffer financial harm.
¶6 The jury found Sanchez guilty of trafficking in stolen property
in the second degree. The jury found four aggravating factors: the value of
the property taken was sufficient to be an aggravating circumstance,
Sanchez committed the offense in consideration of the receipt of pecuniary
value, the victim suffered physical, emotional or financial harm, and
Sanchez was on probation at the time of his offense. As mitigating factors,
the trial court considered Sanchez’s family, his young age, his potential for
rehabilitation, and his cooperation with law enforcement in returning the
stolen property. The trial court also found Sanchez had two historical prior
felony convictions.
¶7 At sentencing, the trial court found that the aggravating and
mitigating circumstances were essentially equivalent. The trial court
imposed the presumptive sentence of 11.25 years’ incarceration for the
trafficking in stolen property offense. In addition, because Sanchez was on
probation for his two historical prior felonies at the time of this offense, the
trial court sentenced Sanchez to two more years of imprisonment, one year
for each count. The trial court imposed consecutive sentences for all three
offenses and gave Sanchez eighty-two days’ presentence incarceration
credit.
2 The trial court dismissed the burglary charge pursuant to Rule 20,
Arizona Rules of Criminal Procedure.
3 Hilda moved to Brazil in December 2013 and was unavailable at trial.
3
STATE v. SANCHEZ
Decision of the Court
¶8 Sanchez 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, 13-4031, and -4033.A.1 (West 2016).4
DISCUSSION
¶9 Sufficiency of the evidence is reviewed “in the light most
favorable to sustaining the conviction.” State v. Tison, 129 Ariz. 546, 552
(1981). All reasonable inferences are resolved against the defendant. Id. A
reversal of a conviction based on insufficiency of evidence requires a clear
showing that there was not sufficient evidence to support the jury’s
conclusion under any hypothesis whatsoever. State v. Williams, 209 Ariz.
228, 231, ¶ 6 (App. 2004).
¶10 Under A.R.S. § 13-2307.A, “[a] person who recklessly traffics
in the property of another that has been stolen is guilty of trafficking in
stolen property in the second degree.” A violation of this statute “in the
second degree is a class 3 felony.” A.R.S. § 13-2307.C. To conclude that an
action is recklessly performed requires a showing that “a person is aware
of and consciously disregards a substantial and unjustifiable risk that the
result will occur or that the circumstance exists.” A.R.S. § 13-105.10(c).
Furthermore, the risk must be “of such nature and degree that disregard of
such risk constitutes a gross deviation from the standard of conduct that a
reasonable person would observe in the situation.” Id.
¶11 The State presented sufficient evidence to support the jury’s
verdict. Sanchez sold one of the stolen computers on E-Bay and his name
was the only name on the storage facility that contained the other four
computers. The jury was instructed that “[p]roof of the purchase or sale of
stolen property at a price substantially below its fair market value, unless
satisfactorily explained, may give rise to an inference that the defendant
was aware of the risk that it had been stolen.” Evidence was presented that
Sanchez had knowledge of computers, but listed them for a sale price
substantially below fair market value. This evidence was sufficient for the
jury to find Sanchez guilty of trafficking in stolen property.
¶12 The State also presented sufficient evidence to support the
jury’s verdict of the aggravating circumstances. Under A.R.S. § 13-701.D.6,
the jury must determine and the trial court must consider as an aggravating
factor whether “[t]he defendant committed the offense as consideration for
4 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
4
STATE v. SANCHEZ
Decision of the Court
the receipt, or in the expectation of the receipt, of anything of pecuniary
value.” Sufficient evidence supported the jury’s finding on the first factor.
Sanchez testified that he expected to get a percentage of the profit from the
computers sold on E-Bay.
¶13 The State also alleged three other aggravating factors: the
value of stolen goods, harm to the victim, and Sanchez’s probation
violation. Under A.R.S. § 13-701.D.25, the State can allege as aggravating
circumstances “[a]ny other factor that . . . is relevant to the defendant’s
character or background or to the nature or circumstances of the crime.”
Sufficient evidence supported the jury’s verdict on the other three
aggravating circumstances. J.J. testified in trial that the hardware for each
of the five stolen computers was valued between $1000 to $1750 and that
the value of the computer data was between $100 to $200 million. A jury
could reasonably find that Sanchez’s offense was harmful and involved the
taking of property in an amount sufficient to be an aggravating
circumstance given the evidence. Also, Sanchez’s probation officer testified
that Sanchez was on probation at the time of the trafficking in stolen
property offense.
¶14 Although the trial court considered Sanchez’s family, his
young age, his potential for rehabilitation, and his cooperation with law
enforcement in returning the stolen property as mitigating circumstances,
the trial court found that the four aggravating factors were essentially
equivalent and imposed the presumptive sentence. Because of the two
prior historical felonies, Sanchez was a category three repetitive offender
under A.R.S. § 13-703.C. Therefore, pursuant to A.R.S. § 13-703.J, the trial
court properly imposed the presumptive sentence.
¶15 The trial court also properly revoked Sanchez’s probation for
his two prior historical felony offenses, sentencing him to two additional
one-year sentences, and correctly applied the eighty-two days’ presentence
incarceration credit to only the first count. See State v. Sodders, 130 Ariz. 23,
29-30 (App. 1981) (relating that credit should not be given on each
consecutive sentence). Under A.R.S. § 13-711.A, the trial court correctly
ordered these three sentences to run consecutively. The trial court properly
calculated Sanchez’s sentences and gave him the correct number of days of
presentence incarceration credit.
CONCLUSION
¶16 We have read and considered counsel’s brief. We have
carefully searched the entire appellate record for reversible error and have
5
STATE v. SANCHEZ
Decision of the Court
found none. See State v. Clark, 196 Ariz. 530, 541, ¶ 49 (App. 1999). All of
the proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. We find substantial evidence supported the jury’s
guilty verdicts. Sanchez was represented by counsel at all critical stages of
the proceedings. At sentencing, Sanchez and his counsel were given an
opportunity to speak, and the trial court imposed a legal sentence. For the
foregoing reasons, Sanchez’s conviction and sentences are affirmed.
¶17 Counsel’s obligations pertaining to Sanchez’s representation
in this appeal have ended. See State v. Shattuck, 140 Ariz. 582, 584 (1984).
Counsel need do nothing more than inform Sanchez 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 id. at 585. Sanchez has thirty days from the date of this decision
to proceed, if he so desires, with an in propria persona motion for
reconsideration or petition for review.
:AA
6