State v. Gonzales

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

ANGELIQUE GONZALES, Appellant.

No. 1 CA-CR 15-0206
FILED 9-22-2015

Appeal from the Superior Court in Apache County
No. S0100CR201300020
S0100CR201300244
The Honorable Gloria Kindig, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Emily Danies, Attorney at Law, Tucson
By Emily L. Danies
Counsel for Appellant
 STATE v. GONZALES
Decision of the Court

MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Andrew W. Gould joined.

N O R R I S, Judge:

¶1 Angelique Gonzales timely appeals from her probation
revocations and disposition sentences. After searching the record on appeal
and finding no arguable question of law that was not frivolous, Gonzales’
counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87
S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d
878 (1969), asking this court to search the record for fundamental error. This
court granted counsel’s motion to allow Gonzales to file a supplemental
brief in propria persona, but Gonzales did not do so. After reviewing the
entire record, we find no fundamental error and, therefore, affirm
Gonzales’ probation revocations and disposition sentences.

FACTS AND PROCEDURAL BACKGROUND1

¶2 In November 2013, Gonzales pleaded guilty to one count of
aggravated assault, a class three felony, in CR 2013-00020 (“the assault
case”), and to one count of failure to appear, a class five felony, in CR 2013-
00244 (“the non-appearance case”). The superior court placed Gonzales on
concurrent terms of five years’ probation in the assault case and three years’
probation in the non-appearance case. The terms and conditions of her
probation prohibited Gonzales from: participating in criminal activity
(“Term 1”); possessing or using illegal drugs or controlled substances
(“Term 12”); and knowingly associating with anyone with a criminal record
or engaged in criminal behaviors (“Term 13”).

1In a probation revocation hearing, the State must prove by a
preponderance of the evidence that the defendant has violated the terms of
his or her probation. Ariz. R. Crim. P. 27.8(b)(3). We review the superior
court’s determination that a defendant violated his or her probation for an
abuse of discretion. See State v. LeMatty, 121 Ariz. 333, 335-36, 590 P.2d 449,
451-52 (1979). Accordingly, we will not reverse the superior court’s factual
finding the defendant violated his or her probation unless the finding was
“arbitrary and unsupported by any reasonable theory of evidence.” Id. at
336, 590 P.2d at 452.

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 STATE v. GONZALES
Decision of the Court
¶3 In April 2014, the superior court found Gonzales had violated
Term 1 of her probation after law enforcement arrested her for trafficking
in stolen property. The superior court placed her on intensive probation in
both cases. The court also specifically directed Gonzales not to have contact
with O.W. because O.W. “ha[d] a pending criminal case.”

¶4 In June 2014, a probation surveillance officer checked on
Gonzales at her home. Gonzales took five minutes to answer the door and
told the officer she was not feeling well. The officer performed a walk-
through of her home and found two pharmacy bags on the dining table.
Both prescriptions were in O.W.’s name; one was for hydrocodone, a
narcotic, but it was not in the bag. The officer then tested Gonzales for
drugs, searched her home, and found a pill bottle for hydrocodone in the
bathroom medicine cabinet, with several pills missing.

¶5 The State petitioned to revoke Gonzales’ probation, alleging
she had violated probation Term 1 (denominated Count II) and Term 12
(denominated Count I). At the revocation hearing, the officer testified the
drug test results were positive for hydrocodone and hydromorphone. O.W.
also testified, stating that she was spending as much as 65-75% of her time
living with Gonzales. At the conclusion of the hearing, and without
objection, the court allowed the State to amend Count II of the petition to
also include use of a narcotic, and to add a Count III, alleging a violation of
Term 13, for associating with O.W.

¶6 The superior court found, by a preponderance of the
evidence, that Gonzales had violated Terms 1, 12, and 13 of her probation.
In the assault case, the court sentenced her to the presumptive term of three
and a half years with 307 days of presentence incarceration credit, and in
the non-appearance case to the presumptive term of one and a half years
with 105 days of presentence incarceration credit, with the sentences to run
consecutively.

DISCUSSION

¶7 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. The probation
revocation proceedings substantially complied with the Arizona Rules of
Criminal Procedure. Gonzales was represented by counsel at all stages of
the proceedings and was present at all critical stages.

¶8 The evidence presented at the hearing was substantial and
supports the probation revocations. The superior court received and
considered a predisposition report; Gonzales was given an opportunity to

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 STATE v. GONZALES
Decision of the Court
speak at the disposition hearing and did so; and her disposition sentences
were within the range of acceptable sentences for her offenses. Ariz. Rev.
Stat. (“A.R.S.”) §§ 13-702, -1204, -2507 (2010 & 2015 Supp.); Ariz. R. Crim. P.
27.8(c)(2).2

CONCLUSION

¶9 We decline to order briefing and affirm Gonzales’ probation
revocations and disposition sentences.

¶10 After the filing of this decision, defense counsel’s obligations
pertaining to Gonzales’ representation in this appeal have ended. Defense
counsel need do no more than inform Gonzales of the outcome of this
appeal and her 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).

¶11 Gonzales has 30 days from the date of this decision to
proceed, if she wishes, with an in propria persona petition for review. On the
court’s own motion, we also grant Gonzales 30 days from the date of this
decision to file an in propria persona motion for reconsideration.

:ama

2Although the Arizona Legislature amended certain statutes
cited in this decision after the date of Gonzales’ offenses, the revisions are
immaterial to the resolution of this appeal. Thus, we cite to the current
version of these statutes.

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