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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

             CARMEN BRENDA LEE GONZALEZ, Appellant.

                             No. 1 CA-CR 19-0098
                               FILED 12-12-2019


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201800578
                The Honorable Brandon S. Kinsey, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Eugene Marquez
Counsel for Appellant
                           STATE v. GONZALEZ
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.


W I N T H R O P, Judge:

¶1            Carmen Brenda Lee Gonzalez (“Appellant”) appeals her
convictions and grant of probation for two counts of theft of means of
transportation. Appellant argues that she had a constitutional right to a
twelve-person jury because she faced more than thirty years’ imprisonment
if convicted on all charged counts, and the trial court committed
fundamental error when it allowed an eight-person jury to decide her case.
Appellant’s sentencing exposure was reduced to less than thirty years’
imprisonment before sentencing, however, and relying on State v. Soliz, 223
Ariz. 116 (2009), we affirm.

                 FACTS AND PROCEDURAL HISTORY1

¶2            In May 2018, a grand jury charged Appellant with one count
of conducting a chop shop, a class two felony (Count I), and two counts of
theft of means of transportation, each a class three felony (Counts II and III).
See Ariz. Rev. Stat. (“A.R.S.”) §§ 13-4702, -1814. The State later amended
the indictment to allege that Appellant had one historical prior felony
conviction. Relying on A.R.S. § 13-703(B) and (I), Appellant maintains the
three charged counts, combined with the allegation of the historical prior
felony conviction, exposed her to a potential fully aggravated sentence of
55.5 years’ imprisonment, or a maximum sentence of 44.5 years’
imprisonment.2




1     We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Kiper,
181 Ariz. 62, 64 (App. 1994).

2     The record does not indicate, however, that the State further
amended the indictment before trial by filing an allegation of aggravating
circumstances pursuant to A.R.S. § 13-701(D) and Rule 13.5(a), Ariz. R.
Crim. P.


                                       2
                             STATE v. GONZALEZ
                              Decision of the Court

¶3             On the first day of trial, before voir dire had begun, the court
stated its “understanding” was that “we’re looking at a panel of 22, 8 jurors
plus 2 alternates.” Neither the prosecutor nor defense counsel disputed the
court’s statement or further inquired as to the required number of jurors.
At the conclusion of voir dire, the parties selected, and the court swore in,
ten jurors for the trial.3

¶4            On the second day of trial, after the State had rested,
Appellant moved for a judgment of acquittal on all counts. See Ariz. R.
Crim. P. 20. The trial court granted Appellant’s Rule 20 motion as to Count
I and denied the motion as to Counts II and III. Shortly thereafter, the jury
convicted Appellant on the two remaining counts.4

¶5             At a status conference before sentencing, the prosecutor
informed the court he would no longer seek to prove the allegation of the
historical prior felony conviction. The court informed the parties that it had
intended to place Appellant on probation “if the State did not prove the
priors, [but] if the State had proven the priors then [the court] would have
to sentence [Appellant] to prison.”

¶6          The court later suspended sentencing on Counts II and III and
placed Appellant on concurrent terms of thirty-six months of supervised
probation.

¶7            We have jurisdiction over Appellant’s timely appeal pursuant
to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-
120.21(A)(1), 13-4031, and 13-4033(A).

                                   ANALYSIS

       I.      Standard of Review and Applicable Law

¶8            We review de novo questions of law, including constitutional
questions. State v. Fitzgerald, 232 Ariz. 208, 216, ¶ 37 (2013); State v. Valentini,
231 Ariz. 579, 581, ¶ 5 (App. 2013).




3      Jurors 1 (originally 15) and 10 (originally 94) were later chosen as
alternates.

4      The jury retired from the courtroom to commence deliberations at
2:46 p.m., and by 4:00 p.m., it had returned to the courtroom to announce
its verdict.


                                         3
                           STATE v. GONZALEZ
                            Decision of the Court

¶9           “Juries in criminal cases in which a sentence of death or
imprisonment for thirty years or more is authorized by law shall consist of
twelve persons.” Ariz. Const. art. 2, § 23; accord A.R.S. § 21-102(A).

       II.    The Merits

¶10            Relying on Article 2, Section 23, of the Arizona Constitution
and State v. Maldonado, 206 Ariz. 339 (App. 2003), Appellant argues that
because she faced a prison sentence of thirty or more years throughout her
trial, “it was prejudicial error to deprive her of an additional four jurors.”
In Maldonado, this court stated, “It is the sentence to which the defendant is
exposed at the outset of the jury trial that determines the number of jurors
selected.” 206 Ariz. at 342, ¶ 14.

¶11            Given our supreme court’s holding in Soliz, however,
Appellant’s reliance on Maldonado is unavailing. In Soliz, the Arizona
Supreme Court considered whether Article 2, Section 23, of the Arizona
Constitution “is violated when a sentence of thirty years or more is
authorized by law for the crimes charged, the case proceeds to verdict with
a jury of less than twelve people without objection, and the resulting
sentence is less than thirty years.” 223 Ariz. at 117, ¶ 1. Soliz overruled a
line of decisions holding it was “fundamental” (actually “structural”) error
to submit a case to an eight-person jury if a defendant faced the possibility
of receiving a cumulative sentence of thirty years or more, absent an express
waiver by the defendant. See 223 Ariz. at 118-20, ¶¶ 9-17 & n.4. Instead,
our supreme court clarified that, by proceeding to trial with a jury of less
than twelve jurors, the State has effectively waived its ability to obtain a
sentence of thirty years or more. Id. at 120, ¶ 16. Additionally, by
proceeding with a jury of less than twelve, the trial court is barred from
imposing a sentence of thirty years or more, and a defendant’s state
constitutional right to a twelve-person jury is not violated “as long as a
lesser sentence may legally be imposed for the crime[s] alleged.” Id.

¶12         Here, substantial evidence supported the jury’s verdicts, the
State waived any right to seek a sentence of thirty or more years, and
Appellant was, in fact, placed on supervised probation for thirty-six
months. “As a result, no error occurred in this case.” Id. at ¶ 18.




                                      4
                  STATE v. GONZALEZ
                   Decision of the Court

                      CONCLUSION

¶13   Appellant’s convictions and probation are affirmed.




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




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