                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                        STATE OF ARIZONA, Appellee,

                                          v.

             RAYMOND EUGENE GALLEGOS, JR., Appellant.

                              No. 1 CA-CR 13-0389
                               FILED 2-25-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-009384-001
                 The Honorable Harriett Chavez, Judge

                AFFIRMED IN PART, VACATED IN PART


                                    COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Spencer D. Heffel
Counsel for Appellant
                          STATE v. GALLEGOS
                          Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Michael J. Brown joined.


K E S S L E R, Judge:

¶1             Appellant Raymond Eugene Gallegos, Jr. (“Gallegos”)
appeals from his convictions for burglary in the third degree, a class 4
felony, trafficking in stolen property in the first degree, a class 2 felony,
and possession of burglary tools, a class 6 felony, with two historical prior
felony convictions for trafficking in stolen property. See Ariz. Rev. Stat.
(“A.R.S.”) sections 13-1506 (2010), -2307 (2010), -1505 (2010). Counsel for
Gallegos filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Finding no
arguable issues to raise, counsel requests that this Court search the record
for fundamental error. Gallegos was given the opportunity to but did not
file a supplemental brief in propria persona. For the following reasons, we
affirm Gallegos’ convictions and sentence with the exception that we
vacate the portion of the sentencing order that requires Gallegos to pay for
his DNA testing. See State v. Reyes, 232 Ariz. 468, 472, 307 P.3d 35, 39
(App. 2013) (holding that there is no basis under A.R.S. § 13-610 to require
a convicted defendant to pay the cost of his DNA testing and vacating that
portion of the sentencing order requiring him to do so).

               FACTUAL AND PROCEDURAL HISTORY

¶2            In June 2012, the keys to the guitar display case at
Bookman’s Entertainment Exchange disappeared. On June 21, 2012, an
employee witnessed two male customers exhibiting unusual behavior
before exiting the store in a hurry. After the men left, the employee
discovered two guitars were missing from the guitar display. A review of
the store’s surveillance video revealed two men exiting Bookman’s with
the guitars.

¶3             The store manager reviewed the security footage, concluded
the guitars were stolen, and called the police. Following a suggestion
offered by the police, the manager checked Craigslist and located an ad
for a guitar that appeared to be one stolen from Bookman’s. The manager
then contacted an officer, who obtained a copy of the Craigslist ad and


                                     2
                             STATE v. GALLEGOS
                             Decision of the Court

contacted the seller, J., by telephone. The officer agreed to meet J. and to
pay cash for the advertised guitar. When J. came out of her apartment
with the guitar, she was detained.

¶4            Within two minutes, Gallegos walked out of the breezeway
of J.’s apartment, looked at the officers detaining her, turned and began
walking away. An officer told Gallegos to stop. Gallegos and two other
males who came from the breezeway of J.’s apartment were detained for
further investigation. Gallegos was advised of his Miranda1 rights and
spoke with officers.

¶5           Gallegos initially denied any knowledge of the guitar and
keys stolen from Bookman’s. When police informed Gallegos that
Bookman’s had security cameras, his story changed. Gallegos said that
another person, S., stole the keys from Bookman’s. Gallegos admitted that
he and S. returned to Bookman’s several days later and each stole one
guitar. The first guitar had been sold and Gallegos was trying to sell the
guitar found in J.’s possession on Craigslist. Gallegos told officers the
keys stolen from Bookman’s could be found in his backpack inside J.’s
apartment.

¶6            Gallegos was subsequently indicted on two counts of
burglary in the third degree, class 4 felonies, two counts of trafficking in
stolen property in the first degree, class 2 felonies, and one count of
possession of burglary tools, a class 6 felony. The State filed an allegation
of two historical prior felonies to be used for sentence enhancement.

¶7            Gallegos declined the State’s offer to plead guilty to two
counts of trafficking in stolen property, and a twelve-person jury trial
returned a verdict of guilty on one count of burglary in the third degree,
one count of trafficking in stolen property in the first degree, and
possession of burglary tools.

¶8             After the State proved two historical priors, the court
sentenced Gallegos to mitigated terms of eight years for burglary in the
third degree, fourteen years for trafficking in stolen property in the first
degree, and three years for possession of burglary tools. The judge
ordered the sentences to run concurrently and credited Gallegos with 227
days of presentence incarceration credit. Gallegos also stipulated to $1,000
in restitution to Bookman’s, in joint and several liability with J. and S.


1   Miranda v. Arizona, 384 U.S. 436 (1966).



                                        3
                           STATE v. GALLEGOS
                           Decision of the Court

¶9            Gallegos timely appealed, and we have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1) (2003), 13-4031 (2010), and -4033(A)(1) (2010).

                               DISCUSSION

¶10           In an Anders appeal, this Court must review the entire record
for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388,
391 (App. 1993). Fundamental error is “error going to the foundation of
the case, error that takes from the defendant a right essential to his
defense, and error of such magnitude that the defendant could not
possibly have received a fair trial.” State v. Henderson, 210 Ariz. 561, 567, ¶
19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688
P.2d 980, 982 (1984)). To obtain a reversal, the defendant must also
demonstrate that the error caused prejudice. Id. at ¶ 20. On review, we
view the facts in the light most favorable to sustaining the jury’s verdict
and resolve all inferences against the defendant. State v. Fontes, 195 Ariz.
229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). “Reversible error based on
insufficiency of the evidence occurs only where there is a complete
absence of probative facts to support the conviction.” State v. Soto-Fong,
187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz.
423, 424-25, 555 P.2d 1117, 1118-19 (1976)).

¶11          There is evidence in the record to support Gallegos’
conviction for burglary, trafficking in stolen property, and possession of
burglary tools.

¶12           To obtain a conviction of burglary in the third degree, the
State must prove that the defendant entered or remained unlawfully in or
on a nonresidential structure and did so with the intent to commit any
theft therein. A.R.S. § 13-1506(A)(1). There is sufficient evidence to
support this finding. The evidence presented at trial included Gallegos’
post-Miranda warning admissions to the police that he and his accomplice
went to Bookman’s and each took a guitar, as well as Bookman’s security
camera footage showing two men walking out of the store, each with one
guitar by his side.

¶13            To obtain a conviction of trafficking in stolen property in the
first degree, the State must prove that the defendant knowingly initiated,
organized, planned, directed, managed, and/or supervised the theft of
property of another, the defendant knowingly initiated, organized,
planned, directed, managed, and/or supervised the trafficking in the
same property, and such property was stolen. A.R.S. § 13-2307(B); See



                                      4
                              STATE v. GALLEGOS
                              Decision of the Court

State v. Bass, 184 Ariz. 543, 546, 911 P.2d 549, 552 (App. 1995). There is
sufficient evidence to support this finding. The evidence presented at trial
included Gallegos’ admissions to the police that J. was to sell the guitar on
Craigslist and Gallegos’ apparent organization and direction of the sale as
indicated by his presence in the parking lot just minutes after J. was
caught trying to sell the guitar to the officer.

¶14           To obtain a conviction of possession of burglary tools, the
State must prove that the defendant possessed any explosive, tool,
instrument, or other article adapted or commonly used for committing
burglary and intended to use or permit the use of such an item in the
commission of a burglary. A.R.S. § 13-1505(A)(1). There is sufficient
evidence to support this finding. The evidence presented at trial included
Gallegos’ statements to the police that the keys to the Bookman’s guitar
case could be found in his backpack inside J.’s apartment. The keys
recovered from the backpack from J.’s apartment were the keys that
opened the Bookman’s guitar case.

                                  CONCLUSION

¶15          After careful review of the record, we find no meritorious
grounds for reversal of Gallegos’ conviction or modification of the
sentence imposed with the exception of the portion of the sentence that
requires Gallegos to pay for his DNA testing. The evidence supports the
verdict, the sentence imposed was within the sentencing limits,2 the
proceedings were held in accordance with the Arizona Rules of Criminal
Procedure, and Gallegos was present and represented at all critical stages
of the proceedings below. Accordingly, we affirm Gallegos’ conviction
and sentence with the exception that we vacate the portion of the
sentencing order that requires Gallegos to pay for his DNA testing.




2   A.R.S. § 13-703(C), (J) (2010).



                                       5
                         STATE v. GALLEGOS
                         Decision of the Court

¶16            Upon the filing of this decision, counsel shall inform
Gallegos of the status of the appeal and his options. Defense 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, 684 P.2d 154, 156-57
(1984). Gallegos shall have thirty days from the date of this decision to
proceed, if he so desires, with a pro per motion for reconsideration or
petition for review.




                                 :mjt




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