State v. Gurule

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOHNNY ANTHONY GURULE,
Appellant.
No. 1 CA-CR 14-0578
FILED 1-7-2016
Appeal from the Superior Court in Maricopa County
No. CR2013-003244-001
The Honorable Thomas L. LeClaire, Judge (Retired)
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Law Office of Kyle T. Green PLLC, Phoenix
By Kyle T. Green
Counsel for Appellant
STATE v. GURULE
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Maurice Portley joined.
O R O Z C O, Judge:
¶1 Johnny Anthony Gurule appeals his conviction of one count
of aggravated criminal damage, a class five felony with two prior felony
convictions, one count of theft, a class one misdemeanor, one count of
trafficking in stolen property in the first degree, a class two felony with two
prior felony convictions, and the resulting sentences. Gurule’s counsel filed
a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v.
California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297 (1969),
indicating he has searched the entire record on appeal and has found no
arguable questions of law that are not frivolous. Counsel requests this court
review the entire record for fundamental error. See State v. Clark, 196 Ariz.
530, 537, ¶ 30 (App. 1999). Gurule was afforded the opportunity to file a
supplemental brief in propria persona, but did not do so. However,
through his attorney, he raises two issues which we address below. After
reviewing the entire record, we affirm Gurule’s convictions and the
resulting sentences.
¶2 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 and 13-4031 and -4033.A (West 2015).1 Finding no reversible
error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3 In 2012, Glendale Police Department officers began
surveilling Frank Lopez. In October 2012, officers obtained a warrant to
affix a GPS tracking device to Lopez’s vehicle. During the surveillance,
officers observed Lopez and Gurule traveling together in Lopez’s vehicle.
¶4 Officers followed Lopez and Gurule into a Lowe’s
department store and observed Lopez and Gurule purchase blades for a
1 We cite the current version of the applicable statutes when no
revisions material to this decision have since occurred.
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STATE v. GURULE
Decision of the Court
reciprocating saw commonly used to cut metal. After leaving Lowes,
Officers observed Lopez’s vehicle stop next to an abandoned or disabled
vehicle parked in a dirt lot. Both Lopez and Gurule exited the vehicle and
Lopez carried a reciprocating saw.
¶5 Lopez crawled under the abandoned vehicle and Gurule
stood next to the vehicle as a “lookout.” Shortly thereafter, Lopez emerged
from underneath the vehicle with a catalytic converter and the
reciprocating saw. Both Lopez and Gurule returned to Lopez’s vehicle and
drove away. After Lopez and Gurule left, officers inspected the abandoned
vehicle and found the vehicle’s catalytic converter had been removed.
¶6 Officers followed Lopez and Gurule to a recycling center.
Lopez testified at trial that he sold the catalytic converter to the recycling
center for $80 while Gurule remained inside the vehicle. During trial, a
recycling center employee testified that both Lopez and Gurule arrived, a
sale involving a catalytic converter took place, but that only Lopez got out
of the vehicle. Officers later verified that the catalytic converter sold to the
recycling center belonged to the abandoned vehicle.
¶7 Gurule was charged with count one, theft, a class one
misdemeanor; count two, trafficking in stolen property in the first degree,
a class two felony; count three, aggravated criminal damage, a class five
felony; count four, theft, a class one misdemeanor; and count five,
trafficking in stolen property in the first degree, a class two felony.2
¶8 Although the trial court advised Gurule of his obligation to
attend trial, and Gurule was aware of his obligation, Gurule absconded
before the verdict and aggravated factors phases of trial. The trial court
subsequently issued a bench warrant for Gurule’s arrest. The jury found
Gurule guilty on count three (aggravated criminal damage), count four
(theft), and count five (trafficking in stolen property). The State alleged
aggravating circumstances as to counts three and five, and the trial court
held an aggravation hearing.3 The jury returned an aggravated verdict as
2 Counts one and two alleged the theft and trafficking of a weed
trimmer, for which Gurule was acquitted.
3 The State alleged the following aggravated circumstances: (1) the
offense involved the presence of an accomplice; (2) the offense caused
financial harm to the victim; (3) the defendant committed the offense as
consideration for the receipt, or in the expectation of the receipt of anything
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STATE v. GURULE
Decision of the Court
to counts three and five, finding all aggravating factors for both counts. The
trial court sentenced Gurule to a presumptive sentence of five years’
incarceration on count three, 180 days’ incarceration on count four, and
15.75 years’ incarceration on count five, with all sentences to be served
concurrently and awarded him presentence incarceration credit of fifty-six
days.
DISCUSSION
¶9 We review the sufficiency of evidence “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.We will reverse a conviction when there is clearly insufficient evidence to
support the jury’s conclusion, under any hypothesis whatsoever. State v.
Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004) (noting that it is the jury’s
function, not the court of appeals, to weigh the evidence and to determine
credibility).
I. Counts Three, Four, and Five: Aggravated Criminal Damage, Theft,
and Trafficking in Stolen Property
¶10 The jury convicted Gurule of aggravated criminal damage,
theft, and trafficking in stolen property. A person may be found guilty of
aggravated criminal damage if the State presents evidence that a person, or
an accomplice, intentionally or recklessly, and without the express
permission of the owner, defaced, damaged, or tampered any property for
the purpose of obtaining nonferrous metals. See A.R.S. § 13-1604.A.4.
Sufficient evidence supports Gurule’s aggravated criminal damage
conviction and the jury’s subsequent finding of an aggravated verdict. The
jury was presented with evidence that Gurule, acting with accomplice
Lopez, sawed off a catalytic converter from a victim’s vehicle without
permission. Detective Goitia testified that as Lopez sawed off the catalytic
converter, Gurule “assisted Mr. Lopez by acting as a lookout.”
¶11 Gurule was also convicted of theft. A person may be found
guilty of theft if the State presents evidence that a person, or an accomplice,
without lawful authority, knowingly controlled the property of another,
with the intent to deprive the other person of such property. See A.R.S. §
13-1802.A.1. Sufficient evidence supports Gurule’s theft conviction. The
testimony was that just before sawing off the catalytic converter, Gurule
of pecuniary value; and (4) the offense involved multiple victims in a single
incident.
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STATE v. GURULE
Decision of the Court
provided Lopez with advice as to the proper blades to cut metal, Gurule
stood watch over Lopez, that both Lopez and Gurule entered Lopez’s
vehicle and drive off together with the catalytic converter.
Lastly, Gurule was convicted of trafficking in stolen property. A person
may be found guilty of trafficking in stolen property if the State presents
evidence that a person, or an accomplice, knowingly initiates, organizes,
plans, finances, directs, manages or supervises the theft and trafficking in
the stolen property of another. See A.R.S. § 13-2307.B. Sufficient evidence
supports Gurule’s trafficking in stolen property conviction and the jury’s
subsequent finding of aggravated circumstances. Detective Goitia testified
that after Lopez and Gurule sawed off the catalytic converter and left the
scene they drove to a recycling center. A recycling center employee testified
that while Gurule remained in the vehicle, Lopez got out of the vehicle,
entered the recycling center, and sold the catalytic converter. Thus, we find
sufficient evidence supported the jury’s verdict on all three counts.
II. Sentencing
¶12 The trial court sentenced Gurule to five years’ imprisonment
for count three, 180 days’ imprisonment for count four, and 15.75 years’
imprisonment for count five, to be served concurrently. The trial court
found that Gurule had two prior felonies. Because of these prior felonies,
Gurule is a category three repetitive offender under A.R.S. § 13-703.C, with
four aggravating circumstances under A.R.S. § 13-701.D. The trial court
considered these factors and properly imposed the presumptive terms for
each count. See Ariz. R. Crim. P. 26.13. The trial court also credited Gurule
for fifty-six days of presentence incarceration. Because the trial court
properly calculated Gurule’s sentence and credited him the correct number
of days, the sentence was legal.
III. Defendant’s Absence during Trial
¶13 Gurule was present at all phases of the trial, except the verdict
and aggravation hearing. “The finding of voluntary absence, and,
therefore, the existence of a waiver of the right to be present, is basically a
question of fact.” State v. Bishop, 139 Ariz. 567, 569 (1984) (citation omitted).
“The trial court may infer that a defendant's absence is voluntary if the
defendant had personal knowledge of the time of the proceeding, his right
to be present, and the warning that the proceeding would take place in his
absence if he failed to appear.” State v. Muniz-Caudillo, 185 Ariz. 261, 262
(App. 1996). We review a trial court's decision to proceed in absentia based
on a defendant's voluntary absence for an abuse of discretion. See id.5
STATE v. GURULE
Decision of the Court
¶14 The trial court properly reminded Gurule of his obligation to
attend trial and Gurule knew of his obligation. Based on the foregoing, we
conclude the trial court properly inferred Gurule's absence from trial was
voluntary and did not abuse its discretion in conducting Gurule's trial in
absentia.
IV. Trial Attorney’s Obligations
¶15 Through his appellate attorney, Gurule argues that his “[trial]
attorney should have called additional witnesses that were not called and
that he should have prevented Mr. Gurule from taking the stand.”
Ineffective assistance of counsel claims are to be brought in Rule 32
proceedings. State v. Spreitz, 202 Ariz. 1, 3 (2002). Accordingly, any such
ineffective assistance of counsel claims raised in an Anders appeal will not
be addressed. Id.CONCLUSION
¶16 We have read and considered counsel’s brief and carefully
searched the entire record for reversible error and have found none. See
Clark, 196 Ariz. at 541, ¶ 49. All of the proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure and substantial
evidence supported the jury’s findings of guilt. Gurule was present and
represented by counsel at all critical stages of the proceedings except for his
voluntary absence from the verdict and aggravation hearing. The trial court
imposed a legal sentence. At sentencing, Gurule and his counsel were given
an opportunity to speak and the court imposed a legal sentence.
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STATE v. GURULE
Decision of the Court
¶17 Counsel’s obligations pertaining to Gurule’s representation in
this appeal have ended. Counsel need do nothing more than inform Gurule
of the status of the appeal and of his future options, unless counsel’s review
reveals an issue appropriate for petition for review to the Arizona Supreme
Court. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Gurule has thirty
days from the date of this decision to proceed, if he desires, with an in
propria persona motion for reconsideration or petition for review.
¶18 For the foregoing reasons, Gurule’s convictions and sentences
are affirmed.
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