Opinion
No. 2 CA-CR 2017-0044
02-01-2018
THE STATE OF ARIZONA, Appellee, v. RENATO PANTOJA BOJORQUEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee The Stavris Law Firm, PLLC, Scottsdale By Alison Stavris Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pinal County
No. S1100CR201600871
The Honorable Richard T. Platt, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Renato Bojorquez ("Bojorquez") appeals following his conviction for theft of means of transportation under A.R.S. § 13-1814(A)(5). On appeal, he argues that the trial court erred in denying his motion for judgment of acquittal at the close of the state's case. Additionally, he argues that the court committed fundamental error by failing to conduct a colloquy before accepting his admissions of prior felony convictions it relied upon to enhance his sentence. We affirm.
Factual and Procedural Background
¶2 In March 2016, Bojorquez's grandfather, J.B., left his work truck, owned by his employer, at his home for about two and a half hours, with the keys under the truck's carpet. When J.B. returned home, the truck was missing. He called his employer to report the truck missing, and the employer then called the Pinal County Sheriff's Office to report it stolen.
¶3 Meanwhile, a Coolidge police officer stopped the truck, which Bojorquez was driving, because its rear lights were not working. Bojorquez told the officer he did not speak English (though he could), gave the officer several different last names, a false first name, and two different social security numbers, and told the officer he was going home even though he was driving in the opposite direction. The officer arrested Bojorquez for an outstanding warrant. At the police station, the officer learned that the truck had been stolen. When he asked Bojorquez about the truck, Bojorquez admitted to taking it without permission.
¶4 Bojorquez was convicted for the above count after a jury trial. At the time of sentencing, the trial court held a priors hearing. At the outset of the priors hearing, Bojorquez's counsel stated:
Your Honor, I did discuss with Mr. Bojorquez his options regarding the prior conviction. In discussing it with him before court, we were in agreement that given that the State has already
proven the priors in another proceeding recently and we do not have any legal issues regarding the priors, Mr. Bojorquez is prepared to stipulate that those are his felony convictions.The court then had the three alleged prior convictions read aloud and asked Bojorquez both if he was convicted of each offense and if he was represented by counsel at the time of each conviction. Bojorquez answered, "Yes," to each question. In addition to accepting Bojorquez's admissions, the court also considered the presentence report, which identified each of the same prior felony convictions. No objection was made to the contents of the presentence report. The court found that the state had proven each of the prior convictions, and then sentenced Bojorquez to an aggravated prison term of fourteen years. This appeal followed. We have jurisdiction under A.R.S. §§ 13-4031 and 13-4033.
Sufficiency of the Evidence
¶5 Bojorquez argues that the trial court erred by denying his motion for a judgment of acquittal under Rule 20, Ariz. R. Crim. P. We review the denial of a motion for judgment of acquittal de novo. State v. West, 226 Ariz. 559, ¶ 15 (2011). In review of a denial of a Rule 20 motion, "the controlling question is solely whether the record contains 'substantial evidence to warrant a conviction.'" Id. ¶ 14, quoting Ariz. R. Crim. P. 20(a). Whether or not the evidence was sufficient to allow the case to go to the jury "is one of law, subject to de novo review." Id. ¶ 15. "On all such motions, 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. ¶ 16, quoting State v. Mathers, 165 Ariz. 64, 66 (1990).
¶6 Bojorquez's sole argument is that the evidence, even with the permissible inferences allowed under A.R.S. § 13-2305, was insufficient to show that he had any intent to permanently deprive the true owner of the work truck, and thus was insufficient to prove theft of a means of transportation under § 13-1814(A)(5). Though intent to permanently deprive is an element of the offense of a theft of a means of transportation under A.R.S. § 13-1814(A)(1), it is not an element of the offense under which Bojorquez was convicted. To prove theft of a means of transportation under § 13-1814(A)(5), the offense for which Bojorquez was convicted, the state must show that the defendant "[c]ontrol[led] another person's means of transportation knowing or having reason to know that the property is stolen." The facts of the case as stated above were sufficient to meet the standard. Because Bojorquez only argues that the evidence failed to show his intent to permanently deprive the owner of the truck, and because such evidence was not required for a conviction under § 13-1814(A)(5), the trial court did not err in denying the motion for judgment of acquittal.
Bojorquez argues that he "should have been charged [with] unlawful use of a means of transportation." See A.R.S. § 12-1803. But he has developed no legal argument, and thus has waived this issue on appeal. See State v. Bolton, 182 Ariz. 290, 298 (1995) (insufficient argument waives claim on review). --------
Prior Conviction Plea Colloquy
¶7 Bojorquez argues that the trial court erred in accepting his admissions to three prior felony convictions without conducting a complete colloquy as required by Rule 17.6, Ariz. R. Crim. P. The colloquy requirement for accepting plea agreements is applicable to stipulations of and admissions to prior convictions during sentencing. Ariz. R. Crim. P. 17.6; State v. Morales, 215 Ariz. 59, ¶ 9 (2007). Because Bojorquez did not raise this failure below, we review this issue only for fundamental error. State v. Henderson, 210 Ariz. 561, ¶ 19 (2005).
¶8 The trial court did not advise Bojorquez of the nature of the allegations, the effect of his admissions on the sentencing, and his right to require the state to prove the allegations. See Ariz. R. Crim. P. 17.2(a); State v. Anderson, 199 Ariz. 187, ¶ 36 (App. 2000). Our supreme court held in State v. Morales that "[a] complete failure to afford a Rule 17.6 colloquy is fundamental error." 215 Ariz. 59, ¶ 10. However, "[t]he absence of a Rule 17.6 colloquy . . . does not automatically entitle a defendant to a resentencing." Id. ¶ 11. "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Henderson, 210 Ariz. 561, ¶ 20. Bojorquez cannot establish prejudice.
¶9 "If a defendant shows that he would not have admitted the prior conviction but for the Rule 17.6 error," he has shown prejudice. Morales, 215 Ariz. 59, ¶ 13. Bojorquez has not asserted, let alone shown, that he would not have admitted the prior convictions but for the incomplete colloquy. Even so, where "evidence conclusively proving his prior convictions is already in the record," the defendant cannot show prejudice. Id. "[A]n unobjected-to presentence report showing a prior conviction to which the defendant stipulated without the benefit of a Rule 17.6 colloquy conclusively precludes prejudice and a remand." State v. Gonzales, 233 Ariz. 455, ¶ 11 (App. 2013). Here, Bojorquez did not challenge the accuracy of the criminal history contained in his presentence report, see Ariz. R. Crim. P. 26.8(b), or otherwise object or introduce evidence to rebut that presentence report, see Ariz. R. Crim. P. 26.7(b)(2); Gonzales, 233 Ariz. 455, ¶ 11. The criminal history contained in Bojorquez's presentence report is sufficient evidence and precludes a finding of prejudice. See id. ¶ 12. Because Bojorquez cannot show prejudice, he is not entitled to relief.
Disposition
¶10 For the above reasons, we affirm Bojorquez's conviction and sentence.