NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
ANGEL SAM HERNANDEZ, Appellant.
No. 1 CA-CR 13-0751
FILED 08-05-2014
Appeal from the Superior Court in Maricopa County
No. CR2013-102961-001
The Honorable Daniel J. Kiley, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant
STATE v. HERNANDEZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Donn Kessler joined.
J O N E S, Judge:
¶1 Defendant Angel Sam Hernandez (Hernandez) appeals his
convictions and sentences for theft of means of transportation, unlawful
flight from a law enforcement vehicle, possession of burglary tools, and
criminal trespass. Hernandez’s defense counsel has searched the record
on appeal and asserts having found no arguable question of law that is not
frivolous. Therefore, in accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel
asks this Court to search the record for fundamental error. Hernandez
was afforded the opportunity to file a supplemental brief in propria
persona, but did not do so. After reviewing the record, we find no
reversible error. Accordingly, we affirm Hernandez’s convictions and
sentences.
BACKGROUND1
¶2 On the night of January 14, 2013, J.G. drove his father’s car, a
Chevrolet Malibu, to work. After finishing his shift around midnight, J.G.
encountered a man exiting the front seat of the Malibu. The man was
wearing a surgical mask and a black hat. The man confronted J.G
brandishing a knife and demanded he give him money. When J.G.
informed the man he did not have any money, the man threatened to kill
him. As J.G. backed away, the car keys fell from his hand. The man
grabbed the keys and told J.G. to give him money for their return. J.G.
again said he had no money. The man then got into the Malibu and
attempted to run J.G. down as he sped out of the parking lot. Glendale
Police officers were called to the scene, where J.G. was able to provide a
vague description of the suspect. The police officers were unable to locate
the stolen vehicle.
1 “We view the evidence presented at trial in a light most favorable to
sustaining the verdicts.” State v. Rutledge, 205 Ariz. 7, 9 n.1, ¶ 2, 66 P.3d 50,
52 n.1 (2003).
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STATE v. HERNANDEZ
Decision of the Court
¶3 On January 17, 2013, a Phoenix Police officer, on patrol in a
fully marked vehicle, observed a car being driven somewhat unusually as
the vehicle’s headlights were flashing between its “bright” and “regular”
lights for no apparent reason. As the vehicle drove past the officer, he was
able to view the driver of the vehicle and the vehicle’s license plate. The
officer then conducted a records check of the vehicle, which indicated the
brown Chevrolet Malibu had been stolen in the city of Glendale. The
officer began following the Malibu, which then began performing evasive
maneuvers. The officer eventually activated his siren and lights in pursuit
of the Malibu, which responded by increasing its speed.
¶4 Shortly thereafter, the officer observed that the driver had
abandoned the vehicle and was attempting to flee the scene on foot. The
officer witnessed the driver scale a wrought iron fence that enclosed the
parking lot of a Phoenix fire station. Officers later apprehended the driver
in the backyard of a residence near the fire station. At the time of the
apprehension, the officers also discovered an “automobile opening
device”2 (AOD) in the driver’s sweatshirt. In addition, officers collected
other tools found on the street near the abandoned Malibu, and later
discovered a tire iron inside the Malibu between the driver’s seat and the
center console. Following his apprehension, the driver was identified as
Hernandez.
¶5 Hernandez was charged with armed robbery, a class two
dangerous felony (Count 1); aggravated assault, a class three dangerous
felony (Counts 2 and 3); theft of means of transportation, a class three
felony (Count 4); unlawful flight from a law enforcement vehicle, a class
five felony (Count 5); possession of burglary tools, a class six felony
(Count 6); and criminal trespass in the second degree, a class two
misdemeanor (Count 7). Prior to trial, the trial court granted the State’s
motion to dismiss Count 2 with prejudice. Accordingly, Counts 3 through
7 were renumbered as Counts 2 through 6.
¶6 After a five day trial, the jury found Hernandez not guilty of
Counts 1 and 2, but guilty of Counts 3 through 6. The jury also found the
State had proven two aggravating factors related to Count 3: 1) the offense
was committed for pecuniary gain, and 2) the value of the property taken
2 A police officer testified at trial that the AOD is also referred to as a “slim
jim.” To open a vehicle, the slim jim is “slipped in between the window
and the door itself and [is] used to manipulate the mechanism of [the car
door’s] lock to bypass the actual locking cylinder.”
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STATE v. HERNANDEZ
Decision of the Court
was sufficient to be an aggravating circumstance. With that, the trial court
sentenced Hernandez to three years’ supervised probation for Counts 3
through 5; those terms to run concurrently. The trial court also sentenced
Hernandez to a deferred jail sentence of 180 days on Counts 3 through 5
that was subject to deletion or further deferral upon Hernandez’s
compliance with the conditions of his probation. As to Count 6,
Hernandez was sentenced to four months’ incarceration in the county jail
and was given credit for 252 days of pre-incarceration credit for Count 6.
Because his presentence incarceration credit exhausted the length of his
sentence on Count 6, the trial court released Hernandez from custody on
that count.
¶7 Hernandez timely appealed. We have jurisdiction pursuant
to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, and
-4033(A)(1).3
DISCUSSION
¶8 After a diligent search of the entire record, Hernandez’s
counsel has advised this Court that she found no arguable question of
law. We have fully reviewed for reversible error, and find none. See Leon,
104 Ariz. at 300, 451 P.2d at 881. In addition, substantial evidence
supports Hernandez’s convictions. “To set aside a jury verdict for
insufficient evidence it must clearly appear that upon no hypothesis
whatever is there sufficient evidence to support the conclusion reached by
the jury.” State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987).
Substantial evidence is “such proof that ‘reasonable persons could accept
as adequate and sufficient to support a conclusion of defendant’s guilt
beyond a reasonable doubt.’” State v. Mathers, 165 Ariz. 64, 67, 796 P.2d
866, 869 (1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53
(1980)). Substantial evidence may include both direct and circumstantial
evidence, which are intrinsically similar. State v. Harvill, 106 Ariz. 386,
391, 476 P.2d 841, 846 (1970). Moreover, circumstantial evidence alone
may be sufficient to sustain a criminal conviction. State v. Green, 111 Ariz.
444, 446, 532 P.2d 506, 508 (1975).
3 Absent material revisions after the relevant dates, statues cited refer to
their current version unless otherwise indicated.
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STATE v. HERNANDEZ
Decision of the Court
I. Theft of Means of Transportation
¶9 To convict Hernandez of theft of means of transportation,
the State was required to prove that, without lawful authority, Hernandez
knowingly controlled another person’s vehicle while “knowing or having
reason to know the [vehicle] is stolen.” A.R.S. § 13-1814(A)(5). Substantial
evidence supports Hernandez’s conviction.
¶10 Eveidence demonstrated Hernandez was in possession of
the Malibu without lawful authority at the time of his arrest. Both J.G.
and his father testified the vehicle was taken without permission, and,
consistent with that testimony, the car was reported stolen to Glendale
police. On the night of Hernandez’s arrest, a Phoenix police officer
witnessed Hernandez driving the vehicle. In addition, the DNA analyst
for the State identified Hernandez as a major contributor of DNA taken
from the steering wheel.
¶11 Moreover, evidence supports the conclusion that Hernandez
knew or had reason to know the vehicle was stolen. When the police
officer began following Hernandez in the Malibu, he first attempted to
evade the officer and ultimately decided to abandon the vehicle and flee
on foot. Given the circumstances, these actions support the reasonable
inference that Hernandez knew the vehicle he was driving was stolen. See
State v. Weible, 142 Ariz. 113, 116, 688 P.2d 1005, 1008 (1984) (“Flight or
concealment after a crime is admissible because it bears on the issue of the
defendant’s consciousness of guilt. . . . Running, if otherwise unexplained,
tends to communicate the individual’s sense of guilt and his wish to
escape immediate pursuit.”). Hernandez later told the police officer that
was transporting him to jail that he fled from the vehicle because he
believed there was a warrant out for his arrest, but later investigation
revealed there were no outstanding warrants issued for Hernandez.
Further, Hernandez later told the same officer, “I’ll do my time and come
out. I’ll come out a [sic] better since I have no warrants,” which negated
his own previous explanation for running from the vehicle. Therefore,
sufficient evidence existed for a reasonable jury to find Hernandez
controlled the Malibu without legal authority and knew it was stolen.
Accordingly, we affirm his conviction.
II. Unlawful Flight from Law Enforcement
¶12 A driver of a motor vehicle may be convicted of unlawful
flight from a law enforcement vehicle if he “wilfully flees or attempts to
elude a pursuing official law enforcement vehicle that is being operated in
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STATE v. HERNANDEZ
Decision of the Court
the manner described in § 28-624, subsection C . . . . [and is] appropriately
marked to show that it is an official law enforcement vehicle.” A.R.S. § 28-
622.01. A.R.S. § 28-624(C) requires the law enforcement vehicle, while in
motion, to “sound[] an audible signal by bell, siren or exhaust whistle as
reasonably necessary,” and if the vehicle is so equipped, “to display[] a
red or red and blue light or lens visible under normal atmospheric
conditions . . . .” Id.
¶13 A Phoenix police officer testified he followed Hernandez in a
fully marked law enforcement vehicle. When Hernandez drove onto a
sidewalk, the officer activated the police vehicle’s siren along with the
vehicle’s equipped red and blue lights. Hernandez failed to stop, and in
fact, accelerated the speed of the vehicle. Hernandez then abandoned the
vehicle and fled the scene. Based upon the record, there is sufficient
evidence to support the jury’s conviction of Hernandez for the crime of
unlawful flight from a pursuing law enforcement vehicle.
III. Possession of Burglary Tools
¶14 In order to convict Hernandez on this count, the State was
required to prove Hernandez possessed any “tool, instrument or other
article adapted or commonly used for committing any form of burglary . .
. and intend[ed] to use or permit the use of such an item in the
commission of a burglary.” A.R.S. § 13-1505(A)(1). “Whether or not an
object is . . . a ‘burglar’s tool’ under possession-of-burglary-tools statutes
depends on the use to which the object is put.” State v. Smith, 103 Ariz.
490, 492, 446 P.2d 4, 6 (1968).
¶15 At the scene of Hernandez’s arrest, officers found an AOD
inside his sweatshirt. A police officer testified the AOD is commonly used
by civilians to “gain illegal access into vehicles.” Moreover, Hernandez
was seen driving, and fleeing from, a stolen vehicle while in possession of
the AOD. In addition, the vehicle’s owner testified the tires and rims had
been removed from the vehicle, and officers found a tire iron in between
the driver’s seat and center console when Hernandez abandoned the
vehicle. A police officer testified that tire irons are also commonly used in
auto thefts. Although in this instance Hernandez had the keys to the
stolen vehicle, given the surrounding circumstances, a reasonable jury
could have concluded Hernandez possessed the AOD for the purpose of
committing burglaries. See State v. Quatsling, 24 Ariz.App. 105, 108, 536
P.2d 226, 229 (1975) (discussing that the element of intent is a question of
fact for the jury, and that intent may be inferred from the facts and
circumstances in evidence). Therefore, our review of the record indicates
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STATE v. HERNANDEZ
Decision of the Court
the State presented sufficient evidence to permit the jury to find
Hernandez possessed a burglary tool with the intent to use it to commit a
burglary.
IV. Criminal Trespass
¶16 “A person commits criminal trespass in the second degree
by knowingly entering or remaining unlawfully in or on any
nonresidential structure or in any fenced commercial yard.” A.R.S. § 13-
1503(A). A fenced commercial yard is defined as “a unit of real property
that is surrounded completely by fences, walls, buildings or similar
barriers or any combination of fences, walls, buildings or similar barriers,
and that is zoned for business operations or where livestock, produce or
other commercial items are located.” When pursued by law enforcement,
Hernandez abandoned the vehicle, scaled an eight foot high wrought iron
fence, and gained entry into the fully enclosed parking area of a Phoenix
fire station. A Phoenix fire fighter testified that the parking lot Hernandez
entered was “fully enclosed” by the fence and was accessible after dark
only from the fire station itself. The fire fighter further testified that
Hernandez did not have permission to be on the premises. Therefore, the
jury could reasonably find Hernandez guilty of criminal trespass in the
second degree.
CONCLUSION
¶17 After reviewing the entire record for reversible error, we
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. All of the
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. The record reveals Hernandez was present at all
critical stages. There was sufficient evidence to support the jury’s
convictions, and the sentences imposed were within the statutory limits.
¶18 With the filing of this decision, defense counsel’s obligations
pertaining to Hernandez’s representation in this appeal have ended.
Defense counsel need do no more than inform Hernandez of the outcome
of this appeal and his future options, unless upon review, counsel finds an
issue appropriate for submission to the Arizona Supreme Court by
petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154,
156-57 (1984).
¶19 Hernandez has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See
Ariz. R. Crim. P. 31.19(a). Upon this Court’s own motion, we also grant
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STATE v. HERNANDEZ
Decision of the Court
Hernandez thirty days from the date of this decision to file an in propria
persona motion for reconsideration.
:gsh
8