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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                           JESSE LUNA, Appellant.

                             No. 1 CA-CR 14-0864
                              FILED 2-23-2016


           Appeal from the Superior Court in Maricopa County
                      No. CR2013-438634-001 DT
             The Honorable Brian Kaiser, Judge Pro Tempore

                                  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. LUNA
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined.


K E S S L E R, Judge:

¶1            Appellant Jesse Luna appeals his convictions for two counts
of aggravated driving under the influence (“DUI”) and two concurrent
eight-year prison terms.1 Counsel for Luna filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530
(App. 1999). Finding no arguable issues to raise, counsel requested that this
Court search the record for fundamental error. Luna was given the
opportunity to, but did not file, a supplemental brief in propia persona. For
the reasons that follow, we affirm Luna’s convictions and sentences.
However, we correct the sentencing minute entry in this case referencing
Luna’s 1990 prior felony conviction.

               FACTUAL AND PROCEDURAL HISTORY

¶2           On August 13, 2013, an on-duty Phoenix police officer
stopped Luna on suspicion of drunk driving. Luna’s driver’s license
showed an interlock device requirement and a search of state vehicle
records revealed Luna’s driving privileges were suspended. The officer
could smell alcohol on Luna’s breath, and found open beer containers in
Luna’s car. Another officer conducted a Horizontal Gaze Nystagmus
(“HGN”) test on Luna, and found four out of six maximum cues of alcohol
impairment. Luna refused to do any more sobriety tests.

¶3           Luna was arrested and taken to a DUI van, where a
phlebotomist drew Luna’s blood pursuant to a search warrant authorizing
the draw. Luna also spontaneously stated that he would be sober before




1Count 1 (aggravated DUI, impaired, a class four felony with two historical
prior felony convictions); and Count 2 (aggravated DUI, alcohol
concentration of 0.08 or more, a class four felony with two historical prior
felony convictions).



                                     2
                              STATE v. LUNA
                             Decision of the Court

the police would get his blood. Luna’s reported blood alcohol concentration
was 0.120.

¶4            A jury convicted Luna for two counts of aggravated DUI. At
sentencing, the judge found Luna had two historical prior felony
convictions, and sentenced Luna concurrently to two mitigated eight-year
terms, with credit for 42 days of presentence incarceration.2

¶5           Luna timely appealed. We have jurisdiction of the appeal
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes (“A.R.S.”) sections 13-4031 (2010), -4033(A)(1) (2010).

                                DISCUSSION

¶6               In an Anders appeal, this Court must review 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
an error of such magnitude that the defendant could not possibly have had
a fair trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). To reverse, the
defendant must also show that the error prejudiced him. Id. at ¶ 20.

¶7            In reviewing the sufficiency of evidence at trial, “[w]e
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). “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)).

¶8             The record reveals substantial evidence to support the jury’s
verdicts for both aggravated DUI counts. Count 1 required proof that Luna
was driving while under the influence of intoxicating liquor, impaired, and
while under a court order to equip his vehicle with a certified ignition
interlock device. See A.R.S. §§ 28-1381(A)(1) (2012), -1383(A)(4) (Supp.
2015).3 Count 2 required proof that Luna was driving while under the
influence of intoxicating liquor, with an alcohol concentration of 0.08 or
more, and while under a court order to equip his vehicle with a certified
ignition interlock device. See A.R.S. §§ 28-1381(A)(2), -1383(A)(4).


2 Luna was not present at the return of the verdict and later was arrested on
a warrant issued by the trial court.
3 We cite the current version of the applicable statutes unless revisions

material to this decision have occurred since the events in question.


                                        3
                             STATE v. LUNA
                            Decision of the Court

¶9             Phoenix police officers testified that Luna was driving a
vehicle and swerving between traffic lanes before they stopped him. The
officers also testified they found open beer cans in Luna’s vehicle, he
smelled like alcohol, and an HGN test revealed four out of six maximum
cues of alcohol impairment. The phlebotomist who performed Luna’s blood
analysis testified Luna’s blood alcohol concentration was 0.120. An MVD
custodian of records/analyst testified Luna had an ignition interlock
requirement on his license and that his driving privilege was suspended.
Thus, there was sufficient evidence to satisfy all of the elements of both
aggravated DUI counts.

¶10             The record reveals substantial evidence to support the
sentencing judge’s finding of two historical prior felonies. In 1990, Luna
was convicted of aggravated assault, a class 3 “dangerous” felony. See
A.R.S. §§ 13-702 (2010), -1204 (Supp. 2015).4 In Arizona, a prior felony
conviction that involved a dangerous offense is a “historical prior felony”
irrespective of the date of conviction. A.R.S. § 13-105(22)(a)(ii) (Supp. 2015).
Luna also was convicted for two class four felonies for misconduct
involving weapons in 2002. Thus, Luna’s felony convictions in 2002, in
conjunction with the aggravated assault felony conviction from 1990,
constituted his third felony conviction, and his second historical prior
felony. See A.R.S. § 13-105(22)(d) (providing that “[a]ny felony conviction
that is a third or more prior felony conviction” constitutes a “historical prior
felony”).

                               CONCLUSION

¶11          After careful review of the record, we find no meritorious
grounds for reversal of Luna’s convictions or modification of the sentences
imposed. The evidence supports the verdicts, the sentences imposed were
within the sentencing limits, and Luna was represented at all stages of the
proceedings below. Accordingly, we affirm Luna’s convictions and
sentences.

¶12          The sentencing minute entry erroneously states Luna’s 1990
prior aggravated assault conviction as “CR1990-006588 Assault, a Class 4
Felony.” However, the sentencing minute entry from the 1990 case
documents Luna’s conviction as “CR90-06588 Aggravated Assault, a class
three dangerous felony.” (Emphasis added.) Accordingly, we correct the


4A.R.S. § 13-702 embodies the current version of A.R.S. § 13-604 (1989),
which was the Arizona statutory provision in effect in 1990 that classified
Luna’s 1990 felony conviction as “dangerous.”


                                       4
                            STATE v. LUNA
                           Decision of the Court

sentencing minute entry here referring to Luna’s 1990 prior felony
conviction as follows: Aggravated Assault, a Class 3 and Dangerous Felony
committed on 6/1/1990 and convicted on 10/4/1990 in CR90-06588 in
Maricopa County Superior Court.

¶13            Upon the filing of this decision, counsel shall inform Luna 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). Luna 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.




                                   :ama




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