State v. Chayrez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SAMUEL LOPEZ CHAYREZ, Appellant.

No. 1 CA-CR 18-0250
FILED 6-8-2021

Appeal from the Superior Court in Maricopa County
No. CR2017-005583-001
The Honorable Pamela Sue Gates, Judge

AFFIRMED IN PART/ VACATED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

The Law Office of Kyle T. Green, P.L.L.C., Tempe
By Kyle Green
Counsel for Appellant
 STATE v. CHAYREZ
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Cynthia J. Bailey and Judge Lawrence F. Winthrop joined.

M c M U R D I E, Judge:

¶1 A jury convicted Samuel Chayrez of four counts of theft of
means of transportation, two counts of felony theft, and one count of
misdemeanor theft. Chayrez appeals his convictions and sentences for the
felony theft convictions and the counts for theft of means of transportation
related to those two thefts, arguing that the convictions violated the Double
Jeopardy Clause. For the following reasons, we vacate the two theft of
means convictions and the corresponding sentences and affirm Chayrez’s
remaining convictions and sentences.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 On May 16, 2016, Chayrez stole a truck attached to a trailer
loaded with four motorcycles. That same day, he stole a bus. The State filed
charges against Chayrez, including theft of means of transportation, a class
three felony (Counts 2 and 5), and theft, a class two felony (Counts 3 and 6).
The State alleged in Count 2 that he stole the truck. In Count 3, the State
alleged that he stole the same truck alleged in Count 2 “and/or” the trailer
and the motorcycles, and the combined value of all items stolen exceeded
$25,000. The State alleged in Counts 5 and 6 that by taking the bus, Chayrez
committed theft (Count 6) and theft of means of transportation (Count 5).

¶3 After the jury convicted Chayrez, the court sentenced him to
concurrent prison terms of 15.75 years for each felony theft conviction, 11.25
years for each means-of-transportation conviction, and six months for the
misdemeanor theft conviction. Chayrez appealed, and we have jurisdiction
under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

1 We view the facts in the light most favorable to upholding the
verdicts. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

2
 STATE v. CHAYREZ
Decision of the Court

DISCUSSION

¶4 On appeal, Chayrez argues that the convictions for Counts 2
and 3 and Counts 5 and 6 violated the Double Jeopardy Clause. The State
concedes error regarding Counts 5 and 6 but not Counts 2 and 3. We accept
the State’s concession regarding Counts 5 and 6 and vacate Count 5. No
further discussion is warranted regarding that issue.

¶5 Chayrez argues that his conviction and sentencing on Counts
2 and 3 violate double jeopardy because both concerned the same conduct,
and theft of means of transportation charged in Count 2 is a lesser included
offense of the theft charged in Count 3.

¶6 We review double jeopardy claims de novo. State v. Powers, 200
Ariz. 123, 125, ¶ 5 (App. 2001). Because Chayrez raises this issue for the first
time on appeal, we review for fundamental error. State v. Henderson, 210
Ariz. 561, 567, ¶ 19 (2005). To show fundamental error, Chayrez must prove
that a fundamental error occurred and caused him prejudice. Id. at ¶ 20. “A
double jeopardy violation constitutes fundamental, prejudicial error.” State
v. Ortega, 220 Ariz. 320, 323, ¶ 7 (App. 2008).

¶7 It violates double jeopardy protections to impose multiple
punishments for the same offense. Powers, 200 Ariz. at 125, ¶ 5. This
principle extends to lesser-included crimes. State v. Chabolla-Hinojosa, 192
Ariz. 360, 362–63, ¶ 10 (App. 1998). The theft of means of transportation
charged in Count 2 is a lesser included offense of the theft charged in Count
3. State v. Carter, 249 Ariz. 312, 316–17, ¶¶ 12–14 (2020) (discussing theft
under A.R.S. § 13-1801(A)(1) and means of transportation under A.R.S.
§ 13-1814(A)(1)). Thus, to the extent that Count 2 and Count 3 involve the
same conduct and property, multiple convictions and sentences would
violate double jeopardy.

¶8 Citing to State v. Fillmore, 187 Ariz. 174 (App. 1996), Chayrez
argues that the theft of the truck, trailer, and the motorcycles in the trailer
constituted one count of theft. We agree. In Fillmore, a defendant drove off
with a tractor attached to a trailer that contained clothing. Id. at 179. The
State charged Fillmore with one theft count for the tractor and trailer which
belonged to one victim, and another theft count for the clothing which
belonged to another victim. Id. This court vacated the count related to the
clothing because “the gist of the offense is the felonious taking of property,”
and the defendant’s taking was one continuous transaction. Id. (quoting
Single or Separate Larceny Predicated upon Stealing Property from Different
Owners at the Same Time, 37 A.L.R.3d 1407 (1971 & Supp.). Chayrez stole the

3
 STATE v. CHAYREZ
Decision of the Court

truck, trailer, and motorcycles in the same manner as the Fillmore defendant
and thus could not be charged separately for taking each item.

¶9 The State argues Counts 2 and 3 cannot be multiplicitous
because Chayrez was convicted for two distinct crimes. See Merlina v. Jejna, 208 Ariz. 1, 4, 90 ¶ 12 (App. 2004) (“We determine multiplicity by applying
the test enunciated in Blockburger[.]”). However, as noted above, our
supreme court rejected the State’s argument in Carter. After Carter, when a
defendant has taken a vehicle simultaneously with other property, the State
may charge the heist as a theft or a theft of a means of transportation, but
not both. See Fillmore, 187 Ariz. at 179.

¶10 Because Count 2 charged Chayrez with a lesser included
offense of Count 3, and both counts resulted from the same taking,
Chayrez’s sentences for Counts 2 and 3 are multiplicitous to the extent that
both involve the same property. Thus, Chayrez has shown error, and we
vacate the lesser offense of theft of means in Count 2.

CONCLUSION

¶11 We vacate the convictions and sentences for Counts 2 and 5.
We affirm the remaining conviction and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

4