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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

             JANDIN ANTHONY RAUL MUÑOZ, Appellant.

                             No. 1 CA-CR 17-0270
                                 1 CA-CR 17-0283
                                 (Consolidated)
                               FILED 6-5-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-137390-001
                             CR2015-121642-001
             The Honorable Alfred M. Fenzel, Judge, Retired

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender's Office, Phoenix
By Edward F. McGee
Counsel for Appellant
                             STATE v. MUÑOZ
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.


J O H N S E N, Judge:

¶1            Jandin Anthony Raul Muñoz appeals from a sentence entered
after the superior court revoked his probation. Muñoz argues the sentence
constituted a consecutive sentence improperly imposed for "a single act"
under Arizona law. For the following reasons, we affirm.

              FACTS AND PROCEDURAL BACKGROUND

¶2            The State charged Muñoz with one count of stalking (Count
1) and one count of aggravated harassment (Count 2), both committed
against his ex-wife, J.R., between January 4 and May 11, 2015. Muñoz pled
guilty to both charges.1

¶3             At the change-of-plea hearing, Muñoz provided a factual
basis for the convictions. For Count 1, Muñoz admitted that between
January 4 and May 11, 2015, he knowingly engaged in a "course of conduct"
directed at J.R. "that would cause a reasonable person to fear for their safety,
and in so doing, did cause [J.R.] to fear for her physical safety." Muñoz
stated the offense in Count 1 involved "text messages sent to the victim
where he stated . . . 'snitches and hoes get killed on sight'" and "I will handle
this myself." Muñoz added that "over a course of time," he sent "a number
of other Facebook messages and texts" with the "same type of content."

¶4            For Count 2, Muñoz agreed that between January 4 and May
11, 2015, J.R. had a valid order of protection against him, and that, in
violation of that order, he contacted J.R. by "various means" and by doing
so, he "harassed her and disturbed her."

¶5           According to the presentence report, J.R. and her family
members contacted police about Muñoz on five different dates in January,
February and May 2015. Over this time period, Muñoz sent J.R. at least 55
text messages, numerous Facebook messages, slashed her and her father's

1      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


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                             STATE v. MUÑOZ
                            Decision of the Court

tires, followed her vehicle from her residence, and parked outside of her
parents' residence. Muñoz also sent J.R.'s sister the text message, "I kill for
fun . . . we love sacrificing bitches like you." In the presentence report,
Muñoz admitted contacting J.R. and making derogatory statements.

¶6             Upon acceptance of the plea, the superior court suspended
sentence on Count 1 and imposed a three-year probation term. On Count
2, the court sentenced Muñoz to one year in prison. Muñoz completed his
prison sentence on Count 2 in March 2016 and then began his term of
probation for Count 1.

¶7            Later in 2016, in Maricopa County Superior Court cause
number CR2016-137390-001, the State charged Muñoz with new crimes:
One count of criminal damage (Count 1), two counts of assault (Counts 2
and 4), one count of kidnapping (Count 3), and one count of sexual assault
(Count 5). A jury found Muñoz guilty of Counts 1, 2, 4 and 5 and of a lesser-
included offense in Count 3. The jury also found Muñoz committed the
crimes in the 2016 case while serving his probation term on Count 1 of the
2015 case.

¶8            At sentencing in the 2016 case, the superior court imposed
concurrent sentences of incarceration, the longest of which was 10.5 years.
The court also found the 2016 convictions constituted grounds to revoke the
probation imposed on Count 1 of the 2015 case, and sentenced Muñoz to a
slightly mitigated consecutive one-year term of imprisonment. The court
explained that it imposed a mitigated term because Muñoz "already served
one year in state prison on the other count" in the 2015 case. Muñoz did not
object to imposition of a consecutive sentence.

¶9            Muñoz timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018),2 13-4031
(2018), and -4033(A)(1) (2018).3




2      Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.

3     Under circumstances present here, a defendant who is placed on
probation pursuant to a plea agreement may appeal a resulting sentence
imposed upon revocation of probation. State v. Regenold, 226 Ariz. 378, 380,
¶¶ 11-12 (2011).


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                             STATE v. MUÑOZ
                            Decision of the Court

                               DISCUSSION

¶10           On appeal, Muñoz argues the superior court erred in
imposing consecutive sentences on Counts 1 and 2 of the 2015 case. Muñoz
contends the underlying crimes of stalking and aggravated harassment in
the 2015 case were so interrelated they constituted "a single act," rendering
consecutive sentences impermissible under A.R.S. § 13-116 (2018).

¶11            Because Muñoz failed to raise this issue in the superior court,
we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567-68,
¶¶ 19-20 (2005). Imposition of an illegal sentence constitutes fundamental
error. State v. Martinez, 226 Ariz. 221, 224, ¶ 17 (App. 2011).

¶12           In relevant part, § 13-116 states, "[a]n act or omission which is
made punishable in different ways by different sections of the laws may be
punished under both, but in no event may sentences be other than
concurrent." To determine whether § 13-116 bars consecutive sentences, we
look to the three-part test developed in State v. Gordon, 161 Ariz. 308, 315
(1989).

¶13           Under Gordon, we first consider the facts of the underlying
crimes, subtracting the evidence needed to establish "the ultimate charge –
the one that is at the essence of the factual nexus and that will often be the
most serious of the charges." Id. at 315. If what remains is sufficient to
prove the elements of the secondary crime, then § 13-116 may not bar
consecutive sentences. Id. Second, we determine whether "it was factually
impossible to commit the ultimate crime without also committing the
secondary crime. If so, then the likelihood will increase that the defendant
committed a single act under A.R.S. § 13-116." Id. Third, we consider
whether the secondary crime exposed the victim to "additional risk of harm
beyond that inherent in the ultimate crime. If so, then ordinarily the court
should find that the defendant committed multiple acts and should receive
consecutive sentences." Id.; see also State v. Roseberry, 210 Ariz. 360, 370-71,
¶¶ 57-62 (2005).

¶14           Applying Gordon, we turn first to the underlying crimes of
stalking and aggravated harassment. To prove Muñoz committed the
crime of stalking, the State had to show that he (1) intentionally or
knowingly engaged in a course of conduct directed toward J.R. that would
cause a reasonable person to fear for her safety or the safety of an immediate
family member; and (2) J.R. did in fact fear for her safety or the safety of her




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                             STATE v. MUÑOZ
                            Decision of the Court

immediate family. A.R.S. § 13-2923(A)(1) (2015).4 A "course of conduct"
includes "[m]aintaining visual or physical proximity to a specific person or
directing verbal, written or other threats, whether express or implied, to a
specific person on two or more occasions over a period of time, however
short." A.R.S. § 13-2923(C)(1)(a)(i) (2015). An "immediate family member"
includes a sibling. A.R.S. § 13-2923(C)(2) (2015).

¶15            To prove Muñoz committed the crime of aggravated
harassment, the State had to show that (1) with the intent to harass, he
contacted, communicated or caused a communication with J.R., continued
to follow J.R. in a public place for no legitimate purpose after being asked
to stop, or repeatedly committed an act or acts that harassed J.R.; and (2)
did so while there was a valid order of protection against Muñoz. A.R.S. §§
13-2921(A)(1)-(3) (2018), -2921.01(A)(1) (2018). The relevant statute defines
"harassment" as "conduct that is directed at a specific person and that would
cause a reasonable person to be seriously alarmed, annoyed or harassed
and the conduct in fact seriously alarms, annoys or harasses the person."
A.R.S. § 13-2921(E).

¶16           Applying the first test under Gordon, we determine whether,
after subtracting evidence needed to establish the "ultimate charge" of
stalking, evidence remains to prove aggravated harassment. In the two text
messages cited in the presentence report and at the change-of-plea hearing,
Muñoz threatened to hurt or kill J.R. and her sister. Muñoz also sent
Facebook messages, damaged property, followed J.R., and went to her
parents' residence. For the crime of stalking, the State needed to prove
Muñoz directed threats toward J.R. on only two occasions. See A.R.S. § 13-
2923(C)(1)(a)(i) (2015). The text messages specifically cited in the record, by
themselves, would have supported the stalking conviction if (and Muñoz
does not dispute this) they caused J.R. to fear for her and her sister's safety.
Subtracting the text messages, sufficient evidence remained to prove
Muñoz repeatedly contacted, followed and communicated with J.R. in a
harassing manner in violation of a valid order of protection.

¶17          Under the second prong of Gordon, the record shows it was
factually possible for Muñoz to commit each of the underlying crimes
without committing the other. Again, Muñoz repeatedly contacted and
communicated with J.R. on several occasions over the course of four
months. Because Muñoz could have committed stalking by sending only
two of these communications, he could have committed the crime of

4     The relevant crimes pre-date the 2016 amendment to A.R.S. § 13-
2923. See H.B. 2419, 52d Leg., 2d Reg. Sess., Ariz. Laws 2016, Ch. 44, § 1.


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                             STATE v. MUÑOZ
                            Decision of the Court

aggravated harassment by his other harassing conduct. Similarly, the
validity of the order of protection is relevant only to the crime of aggravated
harassment.

¶18            Evaluating the facts under the final issue from Gordon, we
reach a similar result. Although both of Muñoz's crimes occurred over the
same four-month period, they caused separate and distinct types of harm
to the victim and the community. In committing stalking by sending the
two cited text messages, Muñoz caused J.R. to live in fear for her and her
sister's safety. In committing aggravated harassment, Muñoz's repetitive
conduct and utter disregard for a court order caused J.R. to suffer additional
emotional harm. Moreover, a violation of a court order undermines the
efficacy of the judicial system and harms the community.

¶19          Based on the foregoing principles, the crimes of stalking and
aggravated harassment in this case did not constitute "a single act," and the
superior court did not err in imposing consecutive sentences.

                               CONCLUSION

¶20           For the foregoing reasons, we affirm the sentence imposed on
the stalking conviction.




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




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