State v. Pacheco ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CHRISTINA MICHELLE PACHECO, Appellant.
No. 1 CA-CR 16-0902
FILED 1-24-2019
Appeal from the Superior Court in Maricopa County
No. CR2014-114154-001
The Honorable Joseph P. Mikitish, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Mercer Law, PLC, Mesa
By Stephen N. Mercer
Counsel for Appellant
STATE v. PACHECO
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Lawrence F. Winthrop joined.
C A T T A N I, Judge:
¶1 Christina Michelle Pacheco appeals her convictions and
sentences resulting from a fraudulent fundraising scheme. Pacheco’s
counsel filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent
search of the record, he found no arguable question of law that was not
frivolous. Counsel asks this court to search the record for reversible error.
See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). Additionally, we
requested Penson1 briefing from both parties on whether the court’s jury
instructions regarding the charge of aggravated taking the identity of
another resulted in fundamental error. After reviewing the record and
considering the additional briefing submitted by the parties, we affirm
Pacheco’s convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2 In late 2013, Pacheco ordered approximately 500 coupon
books with the logo of Students Against Destructive Decisions (“SADD”)
on the cover and coupons for seven businesses inside. Several of the
businesses had agreed to offer coupons after Pacheco represented to them
that she was fundraising and that the proceeds would go to SADD. Pacheco
recruited students from nearby high schools to sell the books door-to-door,
telling them that she was affiliated with SADD and offering them one half
of the book’s $20 sale price for each book sold. She instructed the students
to tell residents that they were affiliated with SADD and to create stories
that would boost sales.
¶3 On January 31, 2014, while selling the coupon books in
Phoenix, a student coincidentally knocked on the door of SADD’s Arizona
director, who knew that no organization had received authorization to use
the SADD logo in such a coupon book. The director confronted Pacheco
about selling the unauthorized books, and after both sides spoke with the
1 Penson v. Ohio, 488 U.S. 75 (1988).
2
STATE v. PACHECO
Decision of the Court
responding officers, the officers confiscated all of the coupon books Pacheco
had with her. Undeterred, Pacheco filed an application to start a SADD
chapter the next day, which was later denied because her proposed chapter
was not linked with a school or community organization.
¶4 Two weeks later, Pacheco met with Detective Wilcox of the
Phoenix Police Department, who told her to stop selling the coupon books
until he had determined whether the books were legitimate.
¶5 On February 28, Peoria police received a report of suspicious
door-to-door sales, and the responding officers found Pacheco, along with
several students, selling the coupon books. Pacheco showed one officer a
generic SADD form, claiming that it gave her permission to sell the books,
and when the officer asked her about the January 31 incident in Phoenix,
she replied that “the case had been resolved.” Because that officer found
Pacheco credible and did not have access to Phoenix police’s files, the officer
did not arrest Pacheco. In the following weeks, Pacheco had several more
encounters with Detective Wilcox, telling him that although she intended
to donate 30% of the proceeds to SADD, she had not sent any money to the
organization yet. After further investigation of the matter, Phoenix police
arrested Pacheco in late March 2014.
¶6 Pacheco was charged with participation in a criminal
syndicate (class 2 felony), fraudulent schemes and artifices (class 2 felony),
two counts of aggravated taking the identity of another (class 3 felonies),
two counts of forgery (class 4 felonies), and false reporting to law
enforcement (class 1 misdemeanor). After an eight-day jury trial, the jury
found Pacheco guilty as charged. The court found that Pacheco had seven
historical prior felony convictions and sentenced her as a category three
repetitive offender to concurrent terms of imprisonment, the longest of
which is 15.75 years, with 55 days of presentence incarceration credit.
Pacheco timely appealed.
DISCUSSION
¶7 We have read and considered counsel’s brief and have
reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find
none.
¶8 After empaneling the jury, the superior court read jurors the
preliminary jury instructions detailing the elements of each offense
charged. This included an accurate instruction on aggravated taking the
identity of another. At the close of evidence, the court again instructed the
jury on aggravated taking the identity of another, but failed to read a
3
STATE v. PACHECO
Decision of the Court
portion of the full instruction, which arguably could have led jurors to
erroneously convict Pacheco of the offense.
¶9 The parties submitted supplemental briefing regarding
whether the omitted jury instruction resulted in fundamental error.
Pacheco concedes in her brief that that the instructional error was not
prejudicial, and she notes that the more appropriate vehicle for her to seek
relief from her convictions and sentences is a petition for post-conviction
relief under Rule 32 of the Arizona Rules of Criminal Procedure.
¶10 The record reflects that the superior court afforded Pacheco
all her constitutional and statutory rights, and that the proceedings were
conducted in accordance with the Arizona Rules of Criminal Procedure.
Pacheco was present and represented by counsel at all stages of the
proceedings against her. The court conducted appropriate pretrial
hearings, and the evidence presented at trial was sufficient to support the
jury’s verdicts. Pacheco’s sentences fall within the range prescribed by law,
with proper credit given for presentence incarceration.
CONCLUSION
¶11 Pacheco’s convictions and sentences are affirmed. After the
filing of this decision, defense counsel’s obligations pertaining to Pacheco’s
representation in this appeal will end after informing Pacheco of the
outcome of this appeal and her future options, unless counsel’s review
reveals an issue appropriate for submission to the Arizona Supreme Court
by petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). On
the court’s own motion, Pacheco has 30 days from the date of this decision
to proceed, if she desires, with a pro se motion for reconsideration or petition
for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
4