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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
RAUL RUDY GONZALES, Appellant.
No. 1 CA-CR 19-0654
FILED 11-24-2020
Appeal from the Superior Court in Maricopa County
No. CR2017-006214-001
The Honorable Kathleen H. Mead, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Thomas Baird
Counsel for Appellant
Raul Rudy Gonzales, Florence
Appellant
STATE v. GONZALES
Decision of the Court
MEMORANDUM DECISION
Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
G A S S, Judge:
¶1 Raul Rudy Gonzales appeals his conviction for one count of
misconduct involving weapons. Gonzales’s counsel filed this appeal in
accord with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104
Ariz. 297 (1969). Gonzales’s counsel searched the record and identified no
arguable, non-frivolous question of law. Counsel, therefore, asks this court
to review the record for reversible error. Gonzales filed a supplemental
brief in propria persona, which this court considered. Based on our review,
we affirm Gonzales’s conviction and sentence but vacate the superior
court’s order requiring him to pay for DNA testing.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court views the facts in the light most favorable to
sustaining the jury’s verdict and resolves all reasonable inferences against
Gonzales. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
¶3 C.G. testified to sitting outside a house in Glendale during the
early hours of May 17, 2016. Gonzales exited the house and walked down a
pathway out of C.G.’s sight. When C.G. followed Gonzales, he told C.G. the
police had arrived and directed C.G. to retrieve a handgun Gonzales had
thrown under a white car.
¶4 Maricopa County Sheriff’s Office (MCSO) deputies were in
the area responding to a welfare check for another person. When C.G. saw
MCSO vehicles and flashlights, he went in another direction and did not
retrieve the handgun. As the deputies returned to their vehicles, they found
a black handgun under a white car. The deputies wore gloves as they
secured the handgun for impounding at an MCSO facility.
¶5 Approximately a year later, a Glendale police officer was
investigating a home invasion and questioned C.G., now in prison, about
the handgun. C.G. recounted the incident in which Gonzales left the
handgun under the white car. The Glendale officer suspected it was the
same handgun used in the home invasion. The officer retrieved the
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STATE v. GONZALES
Decision of the Court
handgun from the MCSO facility and transported it to a Glendale police
station. The handgun was in a sealed bag when the Glendale officer picked
it up. The Glendale police did not intermingle the handgun with other
evidence associated with Gonzales.
¶6 Glendale police obtained a warrant for buccal swabs from
Gonzales. A forensic scientist testified the DNA on the swabs matched the
DNA found on the handgun. The likelihood of a DNA match happening at
random is extremely low. Gonzales was then charged with one count of
misconduct involving weapons.
¶7 Before trial, Gonzales’s counsel moved to suppress the buccal
swabs, arguing the warrant was invalid because it listed potential crimes
for which he had already been acquitted. The superior court denied the
motion, noting the warrant listed other potential crimes, supported by the
facts in the affidavit, for which the State could still charge Gonzales.
¶8 At trial, a probation officer testified Gonzales was on
probation at the time of the alleged offense and was prohibited from
possessing a firearm. Gonzales also stipulated the offense for which he was
on probation was a felony.
¶9 When the State could not secure an MCSO facility manager’s
attendance to testify to the handgun’s chain of custody, Gonzales’s counsel
objected. The superior court invited Gonzales’s counsel to file a written
motion. Gonzales’s counsel did not. Gonzales’s counsel moved for a Rule
20 judgment of acquittal after the State rested. The superior court denied
the motion. Near the end of trial, Gonzales himself—though represented by
counsel—orally moved for a mistrial based again on the handgun’s chain
of custody. The superior court denied his oral motion.
¶10 The jury convicted Gonzales and found he was on probation
at the time of the offense. The superior court found Gonzales had four
historical prior felonies. The superior court imposed a ten-year sentence—
the presumptive for category three offenders—to run consecutively to the
sentence in his probation matter. The superior court also ordered Gonzales
to undergo DNA testing at his own cost.
¶11 Gonzales timely appealed. This court has jurisdiction under
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031, and
-4033.A.1.
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STATE v. GONZALES
Decision of the Court
ANALYSIS
¶12 This court reviews the entire record for reversible error. State
v. Thompson, 229 Ariz. 43, 45, ¶ 3 (App. 2012). After a diligent search of the
entire record, Gonzales’s counsel found no arguable question of law. Yet,
in his supplemental brief, Gonzales raises numerous issues he asks this
court to address, including: (1) several instances of ineffective assistance of
counsel; (2) witness tampering by the State; (3) the buccal swap evidence
acquired by warrant should be suppressed; and (4) the State did not prove
chain of custody of the handgun containing his DNA.
¶13 To begin, Gonzales may not raise ineffective assistance of
counsel claims in his direct appeal. See State ex rel. Thomas v. Rayes, 214 Ariz.
411, 415, ¶ 20 (2007). Instead, Gonzales must present them to the superior
court in a post-conviction relief proceeding. Id. We, therefore, leave
Gonzales to raise these claims in an appropriate proceeding.
¶14 Next, we turn to Gonzales’s witness-tampering claims.
Gonzales presents no evidence the State tampered with witness testimony,
procured witness absence, or committed other prosecutorial misconduct.
He merely cites portions of the transcript and claims witness tampering at
these instances with no factual or legal support. Gonzales does not meet his
burden with mere citations to the record. See State v. Vargas, 249 Ariz. 186,
190, ¶ 14 (2020) (defendants carry burden to prove multiple instances of
prosecutorial misconduct, unobjected to at trial, deprived them of a fair
trial).
¶15 Moving on to Gonzales’s challenge to the evidence from the
buccal swab, we find no error. Gonzales claims the warrant was invalid
because the potential charges were previously adjudicated. A jury acquitted
Gonzales of several listed charges but not all, and the superior court
correctly found probable cause of the other crimes based on the affidavit.
The warrant sought evidence for ongoing investigations of crimes not yet
charged or acquitted. The superior court, therefore, correctly denied
Gonzales’s motion to suppress the DNA evidence.
¶16 Finally, Gonzales argues the State failed to prove an unbroken
chain of custody for the handgun. The State’s failure to offer testimony from
the MCSO facility manager regarding the handling and custody of the
handgun did not doom the State’s chain-of-custody foundation. See State v.
Hurles, 185 Ariz. 199, 206 (1996) (“In setting up a chain of custody, the
prosecution need not call every person who had an opportunity to come in
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STATE v. GONZALES
Decision of the Court
contact with the evidence sought to be admitted.”). The handgun was in a
sealed bag when Glendale police took custody of it and took it to the
Glendale station. Though the State did not produce a witness for every link
in the chain of custody, the State provided “evidence sufficient to support
a finding” that the handgun and the DNA found on it are what the State
claims they are. See State v. Steinle, 239 Ariz. 415, 420, ¶ 25 (2016) (quoting
Ariz. R. Evid. 901(a)). Further, any flaws in the chain of custody of evidence
go to its weight, not to its admissibility. See State v. Gonzales, 181 Ariz. 502,
511 (1995). Accordingly, no error occurred.
¶17 In addition to evaluating the arguments raised in Gonzales’s
supplemental brief, we conducted an independent review of the record for
reversible error. See Leon, 104 Ariz. at 300; State v. Flores, 227 Ariz. 509, 512,
¶ 12 (App. 2011). The superior court conducted all other proceedings in
compliance with the Arizona Rules of Criminal Procedure. Gonzales was
present for, and represented by counsel at, all critical stages of the
proceedings. See State v. Bohn, 116 Ariz. 500, 503 (1977); State v. Conner, 163
Ariz. 97, 104 (1990). The jury was properly comprised of eight jurors and
three alternates. See A.R.S. § 21-102.B. The record shows no evidence of jury
misconduct. The superior court properly instructed the jury on the elements
of the charged offense, the State’s burden of proof, and Gonzales’s
presumed innocence. Additionally, Gonzales was given an opportunity to
speak at sentencing, and the sentence imposed was within the statutory
guidelines. See Ariz. R. Crim. P. 26.9, 26.10(b)(1); A.R.S. §§ 13-703.J
(sentencing range for category three repetitive offender), -708.C (requiring
no less than the presumptive sentence if offence is committed while on
probation for a felony offence), -708.E (requiring sentence to run
consecutively to other sentence for which defendant was on release).
¶18 The superior court, however, did err by ordering Gonzales to
pay the costs associated with his statutorily-required DNA testing. See
A.R.S. § 13-610.A. Though Gonzales must undergo DNA testing, he is not
required to pay for it. See State v. Reyes, 232 Ariz. 468, 472, ¶ 14 (App. 2013)
(“[B]ecause § 13-610 does not require a convicted defendant to be assessed
the cost of his DNA testing, there was no basis for the provision to be
imposed.”). We, therefore, vacate that portion of Gonzales’s sentence.
CONCLUSION
¶19 The portion of the superior court’s order requiring Gonzales
to pay for the DNA testing is vacated. In all other respects, Gonzales’s
conviction and sentence are affirmed.
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STATE v. GONZALES
Decision of the Court
¶20 Defense counsel’s obligations pertaining to Gonzales’s
representation in this appeal have ended. Counsel need only inform
Gonzales of the outcome of this appeal and his future options, unless, upon
review, counsel finds an issue appropriate for submission to our supreme
court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85
(1984).
¶21 Gonzales 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. 31.21. This court, on its own motion, also grants Gonzales thirty
days from the date of this decision to file an in propria persona motion for
reconsideration. See Ariz. R. Crim. P. 31.20.
AMY M. WOOD • Clerk of the Court
FILED: AA
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