                               NOTICE: NOT FOR PUBLICATION.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.

                        LEROY MONTOYA, Appellant.

                              No. 1 CA-CR 12-0719
                               FILED 03/04/2014


            Appeal from the Superior Court in Mohave County
                         No. S8015CR20070095
                The Honorable Lee Frank Jantzen, Judge

                                    AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Kaiser James Wilson, P.L.L.C., Flagstaff
By Jeffrey A. James
Counsel for Appellant
                          STATE v. MONTOYA
                          Decision of the Court



                      MEMORANDUM DECISION

Acting Presiding Judge Margaret H. Downie delivered the decision of the
Court, in which Judge Randall M. Howe and Chief Judge Diane M.
Johnsen joined.


D O W N I E, Judge:

¶1            Leroy Montoya contends the trial court incorrectly found
that he has two historical prior felony convictions for purposes of sentence
enhancement. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             Montoya was indicted in Mohave County in 2008 for
trafficking in stolen property in the first degree, a class 2 felony, with an
alleged offense date of between September 1, 2006, and November 1, 2006.
That charge was consolidated with other criminal matters pending in
Mohave County cause number CR 2007-0095. In that proceeding, the
State alleged the following prior convictions for purposes of sentence
enhancement:

          California conviction on September 17, 1997, for possession of
          an assault weapon;

          California convictions on October 18, 2000, for taking a vehicle
          without owner consent and grand theft from person
          (collectively, the “2000 California Offenses”);

          California conviction on June 7, 2002, for corporal injury to
          spouse/cohabitant; and

          Arizona conviction on June 12, 2007, for theft, a class 6 felony,
          and fraudulent schemes and artifices, a class 2 felony (CR 2007-
          0363).

¶3           In a different criminal proceeding in Mohave County (CR
2007-0058), Montoya was convicted of three felonies. At the April 2009
sentencing in that matter, the court relied on two prior felony convictions
in sentencing Montoya: a 2001 California conviction for possession of an
assault weapon and the Arizona theft conviction in CR 2007-0363. The


                                     2
                           STATE v. MONTOYA
                           Decision of the Court

trial court later determined that its use of the California assault weapon
conviction was improper and re-sentenced Montoya. At re-sentencing in
CR 2007-0058, the court relied on the theft conviction in CR 2007-0363 and
the 2000 California conviction for taking a vehicle without owner consent.

¶4             In May 2009, Montoya was found guilty of the felony
trafficking offense in CR 2007-0095. He demanded to be sentenced as
soon as the jury was dismissed. State v. Montoya, 1 CA-CR 09-0416, 2011
WL 704860, at *7, ¶ 33 (Ariz. App. Mar. 1, 2011) (mem. decision). The trial
court advised that it would sentence Montoya using the same two prior
felony convictions established in the earlier matter (CR 2007-0058), and
Montoya acquiesced. Id. The court asked if Montoya admitted the two
felony convictions, Montoya replied in the affirmative, and the court
sentenced him accordingly. Id. On appeal, we affirmed the conviction but
remanded for re-sentencing because the trial court failed to conduct an
appropriate colloquy before accepting Montoya’s admission to the prior
felonies. Id. at *8, ¶ 35.

¶5            On remand, Montoya filed a “Re-Sentencing Memorandum”
in which he objected to the characterization of his convictions as historical
prior felonies under Arizona Revised Statutes (“A.R.S.”) section
13-604(W)(2)(d) (“’Historical prior felony conviction’ means . . . [a]ny
felony conviction that is a third or more prior felony conviction.”). 1
Although he admitted the felony convictions in CR 2007-0363 and 2007-
0058, Montoya argued that none of the California convictions would have
been felonies had they been committed in Arizona. See State v. Ault, 157
Ariz. 516, 520, 759 P.2d 1320, 1324 (1988) (foreign convictions considered
for sentence enhancement purposes must be equivalent of felony
convictions in Arizona). If the California convictions were not included,
Montoya argued, the State could not establish the requisite historical prior
felony convictions under A.R.S. § 13-604(W)(2)(d).

¶6           At the re-sentencing hearing, the State introduced into
evidence a California “Abstract of Judgment—Prison Commitment,”
reflecting that Montoya had been convicted of the 2000 California
Offenses on October 18, 2000. The State also proved that the fingerprints
in the abstract matched Montoya’s. But the State conceded it had no

1       Unless otherwise indicated, we cite and rely on the statutes in effect
when Montoya committed the trafficking offense. The definitions of
historical prior felony conviction are now found in A.R.S. § 13-105(22)
(a)-(d) (2013).



                                      3
                           STATE v. MONTOYA
                           Decision of the Court

evidence the 2000 California Offenses were committed on separate dates
or that the grand theft property offense would be a felony if committed in
Arizona. See A.R.S. § 13-604(M) (convictions for two or more offenses
committed on “same occasion” count as one conviction); State v. Crawford,
214 Ariz. 129, 131, ¶ 7, 149 P.3d 753, 755 (2007) (“Before using a foreign
conviction for sentencing enhancement purposes under § 13-604, the
superior court must first conclude that the foreign conviction includes
‘every element that would be required to prove an enumerated Arizona
offense.’”). The State therefore asked the court to treat the 2000 California
Offenses as one prior felony. Focusing on the taking a vehicle without
owner consent conviction, the State asserted there was “no need to
compare the [Arizona and California] statutes word for word” to
determine whether the offense would have been a felony if committed in
Arizona because “[u]nder any theory in Arizona, you take somebody’s
vehicle . . . you got a felony.” The State further argued that the theft
conviction in CR 2007-0363 was Montoya’s “second felony” and that “any
one” of the convictions in CR 2007-0058 would constitute a “third or
more” conviction.

¶7            The trial court found that the California statute prohibiting
taking a vehicle without consent sufficiently “match[ed]” the Arizona
joyriding statute and that it “would find, if necessary,” that the California
conviction “would be a prior felony from 2000.” It further determined
that the convictions in CR 2007-0363, considered as a whole, and those in
CR 2007-0058, considered as a whole, constituted two prior felonies. The
court then sentenced Montoya to 10.5 years — the super-mitigated
sentence for a class 2 felony with two historical prior felony convictions. 2

¶8             Montoya timely appealed. We have jurisdiction pursuant
to A.R.S. §§ 12-120.21(A)(1) (2013) and 13-4033(A)(1) (2013).

                               DISCUSSION

¶9           Montoya asserts that the trial court erred by: (1) relying on
his convictions in CR 2007-0058 for sentence enhancement purposes
because the State failed to allege them prior to trial; and (2) finding that he
had two historical prior felony convictions.



2     In 2006, a super-mitigated sentence with one historical prior would
have been 4.5 years.




                                      4
                          STATE v. MONTOYA
                          Decision of the Court

I.    Failure to Amend Charging Document

¶10           The State was required to allege the prior convictions in CR
2007-0058 “prior to the date the case [was] actually tried,” but concedes
that it did not do so. A.R.S. § 13-604(P). Because Montoya failed to object
to this omission in the trial court, we review for fundamental error only.
See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).
Under that standard, Montoya must show that fundamental error
occurred and that it prejudiced him. See id. at ¶ 20.

¶11           We agree with the State that Montoya has not demonstrated
the requisite prejudice. The State’s amendment of the charging document
to allege the California convictions, as well as the convictions in CR 2007-
0363, put Montoya on notice that his prior felony convictions could
enhance his sentence. See State v. Benak, 199 Ariz. 333, 337, ¶ 16, 18 P.3d
127, 131 (App. 2001) (notice sufficient if defendant “not ‘misled, surprised
or deceived in any way by the allegations’ of prior convictions”). More
importantly, any asserted prejudice is belied by Montoya’s own
sentencing memorandum, which specifically discussed the State’s intent
to use his convictions in CR 2007-0058.

¶12           We find no fundamental error in using Montoya’s
convictions in CR 2007-0058 for purposes of sentence enhancement.

II.   Historical Priors

¶13           We review de novo a trial court’s determination that a prior
conviction constitutes an historical prior felony. State v. Cotten, 228 Ariz.
105, 110, ¶ 15, 263 P.3d 654, 659 (App. 2011) (citations omitted). “[P]rior
convictions for sentence enhancement purposes must be established by
clear and convincing evidence.” State v. Cons, 208 Ariz. 409, 415, ¶ 15, 94
P.3d 609, 615 (App. 2004).

¶14          The State argues the convictions in CR 2007-0058 and
CR 2007-0363 are historical prior felony convictions pursuant to A.R.S. §
13-604(W)(2)(d) — “[a]ny felony conviction that is a third or more prior
felony conviction.” It argues that under that provision, the 2000 California
Offenses constitute Montoya’s first and second felony convictions,
rendering the two subsequent Arizona convictions his third and fourth. 3


3      Although the State’s answering brief appears to concede this point,
at oral argument, counsel for the State suggested that the record could



                                     5
                           STATE v. MONTOYA
                           Decision of the Court

¶15            According to Montoya, the record is devoid of evidence
establishing that the 2000 California Offenses qualify as two prior felonies.
See State v. Provenzino, 221 Ariz. 364, 369, ¶ 19, 212 P.3d 56, 61 (App. 2009)
(burden of proving prior convictions for sentence-enhancement purposes
is on State). As noted supra, the prosecutor made no attempt in the trial
court to demonstrate that the 2000 California Offenses were committed on
separate dates or that the grand theft property offense would have been a
felony if committed in Arizona. See A.R.S. § 13-604(M) (“Convictions for
two or more offenses committed on the same occasion shall be counted as
only one conviction for purposes of this section.”); Crawford, 214 Ariz. at
131, ¶ 7, 149 P.3d at 755 (use of foreign conviction to enhance sentence is
appropriate if court finds it includes “every element” necessary to prove
enumerated Arizona offense).

¶16            The State asks us to take judicial notice of the Mohave
County proceedings in CR 2007-0058, observing that we may affirm even
if the trial court failed to perform the appropriate analysis of both
California convictions. See State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214,
1219 (1984) (“We are obliged to affirm the trial court’s ruling if the result
was legally correct for any reason.”). We may take judicial notice “of any
matter of which the trial court may take judicial notice, even if the trial
court was never asked to do so.” State v. McGuire, 124 Ariz. 64, 66, 601
P.2d 1348, 1349 (App. 1978); accord Visco v. Universal Refuse Removal Co., 11
Ariz. App. 73, 74, 462 P.2d 90, 91 (1969) (“[I]t is proper for a court to take
judicial notice of the record in another action tried in that same court.”).

¶17          In CR 2007-0058, the State offered the felony complaints and
court dockets for each of the 2000 California Offenses. In that case, the
superior court specifically found that each offense was committed on a
separate date and that each would have been a felony if committed in
Arizona.

¶18           We could remand this case for re-sentencing, where the trial
court could then take judicial notice of the record and findings in CR 2007-
0058 and perform the appropriate analysis. See State v. Schackart, 190 Ariz.
238, 247, 947 P.2d 315, 324 (1997) (“[T]he customary way to prove a prior
offense is by introducing appropriate documentary evidence in the trial
court.”). Notions of judicial economy, though, dictate against such action.


support finding more than one prior felony offense in CR 2007-0363 or
2007-0058. Based on our conclusion that the record sufficiently establishes
two felony convictions from California, we need not address this issue.



                                      6
                           STATE v. MONTOYA
                           Decision of the Court

The State asks us to take judicial notice of appropriate records and to
perform a purely legal analysis. See State v. Robertson, 128 Ariz. 145, 147,
624 P.2d 342, 344 (App. 1980) (taking judicial notice of laws of another
state). The State made its request in its answering brief and proffered the
relevant documentation. Montoya did not reply in opposition.

       A.     Taking of Vehicle

¶19           Montoya was charged with Unlawful Driving or Taking of a
Vehicle, in violation of California Vehicle Code (“Cal. Veh. Code”)
§ 10851(a) (2000). Specifically, he was alleged to have taken a vehicle from
“Enterprise” on or about June 14, 2000. In sentencing Montoya on
remand, the superior court compared the elements of this California
offense to the Arizona offense of unlawful use of means of transportation,
concluding that the elements matched in all relevant respects. We agree.

¶20            Cal. Veh. Code § 10851(a) (2000) states that a person is guilty
of unlawful taking of a vehicle when he or she “drives or takes a vehicle
not his or her own, without the consent of the owner thereof, and with
intent either to permanently or temporarily deprive the owner thereof of
his or her title to or possession of the vehicle, whether with or without
intent to steal the vehicle.” The elements of this California offense match
the elements of our offense of unlawful use of means of transportation, a
class 5 felony. See A.R.S. § 13-1803(A)(1), (B) (2000). A person is guilty of
that offense if he or she “without intent permanently to deprive . . .
[k]nowingly takes unauthorized control over another person’s means of
transportation.” Id. at (A)(1).

       B.     Grand Theft From Person

¶21           Montoya was charged in California with grand theft from
person, in violation of California Penal Code (“Cal. Penal Code”) § 487(c)
(2000). Specifically, he was alleged to have taken property from Yolanda
Chavez on or about January 5, 2000.

¶22           Cal. Penal Code 487(c) (2000) states that grand theft occurs
when “property is taken from the person of another.” In Arizona, theft
occurs when a person knowingly and without lawful authority,
“[c]ontrols property of another with the intent to deprive the other person
of such property.” A.R.S. § 13-1802(A)(1) (2000). Theft is a class 6 felony
when the property is “taken from the person of another.” Id. at (E). The
elements of the California and Arizona offenses match in relevant
respects, such that the California offense would have been a felony if
committed in Arizona.


                                      7
                           STATE v. MONTOYA
                           Decision of the Court

       C.     Application of A.R.S. § 13-604(W)(2)(d)

¶23           Montoya was convicted of the 2000 California Offenses and
the felony offenses in CR 2007-0363 and 2007-0058 before he was
convicted in CR 2007-0095. See State v. Phillips, 202 Ariz. 427, 441, ¶ 78, 46
P.3d 1048, 1062 (2002) (“A trial court may use a prior felony conviction for
enhancement purposes whenever ‘the conviction on the prior offense . . .
precede[s] the conviction on the present offense.’”); cf. State v. Thomas, 219
Ariz. 127, 129-30, ¶¶ 8-12, 194 P.3d 394, 396-97 (2008) (language referring
to “any” felony conviction imposes “a timing-of-conviction requirement”
but “no timing-of-commission requirement”).

¶24           Viewing the conviction dates chronologically, see State v.
Christian, 205 Ariz. 64, 67 n.8, ¶ 8, 66 P.3d 1241, 1244 n.8 (2003), the 2000
California Offenses were Montoya’s first and second felonies. His
conviction in CR 2007-0363 was his third, and his conviction in CR 2007-
0058 was his fourth. Montoya was therefore properly sentenced with two
historical priors. See A.R.S. § 13-604(W)(2)(d) (historical prior felony is
“[a]ny felony conviction that is a third or more prior felony conviction”).




                                      8
                         STATE v. MONTOYA
                         Decision of the Court


                            CONCLUSION 4

¶25          For the reasons stated, we affirm Montoya’s sentence.




                             :gsh




4     After this matter was fully briefed and oral argument had been set,
Montoya filed a pro se motion to dismiss his current lawyer, asking us to
appoint new counsel. We deny his request.



                                    9
