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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JOHN JOSEPH MARTINEZ, Appellant.

                             No. 1 CA-CR 15-0486
                               FILED 7-21-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2010-104491-002
                The Honorable Peter C. Reinstein, Judge

                                  AFFIRMED


                                   COUNSEL

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


Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
                           STATE v. MARTINEZ
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Margaret H. Downie and Judge Kent E. Cattani joined.


K E S S L E R, Judge:

¶1            John Joseph Martinez (“Martinez”) appeals his conviction
and sentence for participating in a criminal street gang with two prior
felony convictions, a class 2 non-dangerous, repetitive felony, in violation
of Arizona Revised Statutes (“A.R.S.”) section 2321 (2010).1 Counsel for
Martinez filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967) and State v. Leon, 104 Ariz. 297 (1969). Finding no arguable issues to
raise, counsel requests that this Court search the record for fundamental
error. Martinez was given the opportunity to file a supplemental brief in
propria persona, but did not do so. For the reasons that follow, we affirm
Martinez’s conviction and sentence.

               FACTUAL AND PROCEDURAL HISTORY

¶2             Martinez was indicted for one count of participating in a
criminal street gang, a class 2 felony. The State alleged the following: the
crime was committed with the intent to promote, further, or assist criminal
conduct by a criminal street gang; Martinez had ten historical non-
dangerous felony convictions; and Martinez committed the current offense
while on release or escape from confinement in another case. As detailed
below, the State presented evidence at trial that Martinez was a member of
a criminal street gang and agreed to assault persons not complying with the
gang’s orders, arranged to sell illegal drugs for the gang, and collected
funds from such sales.

¶3            After the jury convicted Martinez of the charged offense,
during the aggravation phase the jury found that Martinez had acted in
furtherance of, to benefit, or in association with a criminal street gang. The
superior court found that the State proved Martinez had eight prior felony
convictions, serving as enhancements for the present conviction. The court



1       We cite to the current versions of statutes when no changes material
to this decision have since occurred.


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                           STATE v. MARTINEZ
                           Decision of the Court

also found for purposes of sentencing that Martinez was convicted of
influencing a witness and of aggravated robbery.

¶4            The superior court sentenced Martinez to 22 years’
imprisonment and awarded 350 days of presentence incarceration credit.
At a consolidated sentencing hearing, the court ordered the sentence to run
concurrent with the sentences for counts 4 and 5 in CR2014-138099-001.
This is consistent with his sentencing in the latter case, which this Court
affirmed on appeal in State v. Martinez, 1 CA-CR 15-0485, 2016 WL 3773508
(Ariz. App. July 12, 2016) (mem. decision). Count 3 of the 2014 case, six
years’ imprisonment, was ordered to run consecutive to the current
sentence.

¶5            Martinez timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, as well as A.R.S. §§ 12-
120.21(A)(1) (2016), 13-4031 (2010), -4033(A)(1) (2010).

                               DISCUSSION

¶6             In an Anders appeal, this Court reviews the entire record for
fundamental error. Error is fundamental when it affects the foundation of
the case, deprives the defendant of a right essential to his defense, or is of
such magnitude that the defendant could not possibly have had a fair trial.
See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). To obtain a reversal,
the defendant must also demonstrate that the error caused prejudice. Id. at
¶ 20.

¶7            There is sufficient evidence in the record to support
Martinez’s conviction. In reviewing the sufficiency of evidence at trial,
“[we] construe the evidence in the light most favorable to sustaining the
verdict, and resolve all reasonable inferences against the defendant.” State
v. Greene, 192 Ariz. 431, 436, ¶ 12 (1998), recognized as abrogated on other
grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015). “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 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25 (1976))
(internal quotation marks omitted).

¶8            A person is guilty of participating in a criminal street gang by
intentionally directing, supervising or financing the gang with intent to
promote or further the gang’s criminal objectives, knowingly inducing
others to engage in violence or intimidation to promote or further the
gang’s criminal objectives, or furnishing advice or direction in the conduct
of the gang’s affairs with the intent to promote or further the gang’s


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                           STATE v. MARTINEZ
                           Decision of the Court

criminal objections. A.R.S. § 13-2321(A). The State presented sufficient
evidence that Martinez is a criminal street gang member of Eastside Mesa
Locos. First, it provided evidence consistent with A.R.S. § 13-105(8) (Supp.
2015) that a “criminal street gang” is “an ongoing formal or informal
association of persons in which members or associates individually or
collectively engage in the commission, attempted commission, facilitation,
or solicitation of any felony act and that has at least one individual who is
a criminal street gang member.” Second, it presented evidence that to
qualify as a “criminal street gang member,” a potential member must meet
two out of the seven criteria in A.R.S. § 13-105(9): (1) self-proclamation, (2)
witness testimony or official statement, (3) written or electronic
correspondence, (4) paraphernalia or photographs, (5) tattoos, (6) clothing
or colors, and (7) any other indicia of street gang membership.

¶9              At trial, witnesses testified that Martinez met the criteria to
qualify as a criminal street gang member. Regarding the self-proclamation
criterion, several witnesses testified that during their meetings with
Martinez, Martinez yelled out “Eastside” and told the witnesses that he had
been a member of Eastside Mesa Locos since he was a child. Regarding the
tattoo criterion, several witnesses who are experts on Arizona gangs
testified that several of Martinez’s tattoos were related to his membership
in a gang, which Martinez confirmed.

¶10           The State also provided sufficient evidence that Martinez’s
actions were done in furtherance, to benefit, or in association with a
criminal street gang. Several witnesses, one of whom conducted
investigations of the Arizona Mexican Mafia, testified on the relationship
between the Mafia and criminal street gangs. One witness testified that
Martinez participated in three phone calls2 with incarcerated gang
members and that Martinez had agreed to assault or had already assaulted
someone, was willing to commit violent acts on behalf of the Mafia,
possessed and sent drugs to incarcerated Mafia members, and began to
organize crews to get money for the Mafia.

                              CONCLUSION

¶11         After careful review of the record, we find no meritorious
grounds for reversal of Martinez’s conviction or modification of the


2      The phone calls were part of the witness’s three-year long
investigation of the Arizona Mexican Mafia.




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                           STATE v. MARTINEZ
                           Decision of the Court

sentence imposed. The record reflects that Martinez had a fair trial and all
proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure. The evidence supports the verdict and the sentence
imposed was within sentencing limits.3 Martinez was present and
represented by counsel at all critical stages.4 Accordingly, we affirm
Martinez’s conviction and sentence.

¶12            Upon the filing of this decision, counsel shall inform Martinez
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 (1984). Martinez 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.




                                 :AA




3     The 350-day presentence incarceration credit is correct. Martinez
was arrested and booked on July 16, 2014. He posted bond on July 29, 2014.
He was arrested for CR2014-138099-001 on August 7, 2014. Sentencing
occurred on July 10, 2015.

4     Martinez was not present for the not guilty arraignment
continuation, so the court reset the same arraignment for a later date, which
Martinez attended.


                                       5
