State v. Balbastro

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SERGIO M. BALBASTRO, Appellant.

No. 1 CA-CR 18-0453
FILED 4-18-2019

Appeal from the Superior Court in Maricopa County
No. CR2017-151813-001
The Honorable Danielle J. Viola, Judge

AFFIRMED

COUNSEL

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

Bain & Lauritano, PLC, Glendale
By Amy E. Bain
Counsel for Appellant
 STATE v. BALBASTRO
Decision of the Court

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Jon W. Thompson and Vice Chief Judge Peter B. Swann joined.

M O R S E, Judge:

¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for Sergio
M. Balbastro has advised this Court that counsel found no arguable
questions of law and asks us to search the record for fundamental error.
Balbastro was convicted of Theft of Means of Transportation, a class 3
felony; Possession of Burglary Tools, a class 6 felony; Resisting Arrest, a
class 6 felony; and Refusing to Provide Truthful Name When Legally
Detained, a class 2 misdemeanor. Balbastro was given an opportunity to
file a supplemental brief in propria persona but has not done so. After
reviewing the record, we affirm Balbastro's convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
judgment and resolve all reasonable inferences against Balbastro. See State
v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).

¶3 On the evening of November 6, 2017, victim C.P.G. parked a
1994 white Honda Accord in her apartment complex's parking lot. When
C.P.G. returned to the lot the following morning, the Accord was no longer
there, and C.P.G. reported it stolen. C.P.G. had not given anyone
permission to take the Accord and the keys were still within C.P.G.'s
apartment.

¶4 Three days later, at 2:40 a.m., a Phoenix Police Officer saw a
white Honda Accord make a right-hand turn at a red light without coming
to a complete stop. The officer ran a check on the license plate number and
learned that the Accord had been reported as stolen. The officer conducted
a traffic stop of the Accord and Balbastro, the only occupant of the Accord,
got out of the car, looked back at the officer, and then ran up a driveway
toward the backyard of a house.

¶5 The homeowner told the police officers at the scene that his
son lived in a room in the back of the house. He gave the officers permission

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 STATE v. BALBASTRO
Decision of the Court

to conduct a search. The homeowner's son, Leonardo Perez, told the
officers that Balbastro came to the house and "wanted to crash." Balbastro
had told Leonardo that he had arrived in a stolen car.

¶6 Police officers found Balbastro lying on the floor of the room,
under the end of the bed. The officer that had initially stopped the Accord
identified Balbastro as the suspect he had seen exiting the vehicle earlier.
Despite the officer's commands, Balbastro did not move. After being told
he was under arrest, Balbastro began "flailing around," pulling his arms
underneath his body and kicking his feet, hitting an officer in the face. The
officers ultimately succeeded in arresting Balbastro. Officers searched the
Accord and found a key in the ignition. They were initially unable to
remove the key from the ignition and it was later revealed to be a key for a
Chevrolet.

¶7 Balbastro initially refused to provide officers his full name
and claimed he was unable to remember his date of birth. He then told
officers he forgot his name and provided a false name. Fingerprint analysis
revealed Balbastro's identity, and Balbastro later stated that he borrowed
the car from "Jose" and took off "cruising" after asking if the car "was legit."
He denied knowing that the car was stolen.

¶8 The State indicted Balbastro for Theft of Means of
Transportation, a class 3 felony; Possession of Burglary Tools, a class 6
felony; Aggravated Assault, a class 4 felony; Resisting Arrest, a class 6
felony; and Refusing to Provide Truthful Name when Lawfully Detained, a
class 2 misdemeanor. The court later dismissed the Aggravated Assault
count at the State's request. The State alleged that Balbastro had five non-
dangerous felony convictions, Balbastro committed the offenses while on
probation, and several aggravating circumstances existed.

¶9 At trial, Balbastro moved for a directed verdict pursuant to
Arizona Rule of Criminal Procedure 20, but the court denied the motion.
The jury found Balbastro guilty of all the remaining four counts, and it
found the State had proven the aggravating factor that Balbastro committed
the offense while on felony probation. The court sentenced Balbastro to a
term of 12 years' imprisonment for the Theft of Means of Transportation
count; concurrent terms of 4 years' imprisonment for the other two felony
counts; and a concurrent term of 4 months' imprisonment for the
misdemeanor count. It also ordered Balbastro to pay a $20 probation
assessment, a $20 time-payment fee, and $807 in restitution.

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Decision of the Court

¶10 Balbastro timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes sections 12-120.21(A)(1), 13-4031, and 13-4033(A).

DISCUSSION

¶11 We review Balbastro's convictions and sentences for
fundamental error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).
Counsel for Balbastro has advised this Court that after a diligent search of
the entire record, counsel has found no arguable question of law. We have
read and considered counsel's brief and fully reviewed the record for
reversible error, see Leon, 104 Ariz. at 300, and we find none. All of the
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. So far as the record reveals, counsel represented
Balbastro at all stages of the proceedings, and the sentences imposed were
within the statutory guidelines. We decline to order briefing and affirm
Balbastro's convictions and sentences.

¶12 Upon the filing of this decision, defense counsel shall inform
Balbastro of the status of the appeal and of his future options. Counsel has
no further obligations unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Balbastro shall
have 30 days from the date of this decision to proceed, if he desires, with an
in propria persona motion for reconsideration or petition for review.

CONCLUSION

¶13 For the foregoing reasons, we affirm Balbastro's convictions
and sentences.

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

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