                                 IN THE
             ARIZONA COURT OF APPEALS
                               DIVISION ONE


                        STATE OF ARIZONA, Appellee,

                                    v.

                 VICTOR TED HERNANDEZ, Appellant.

                            No. 1 CA-CR 16-0336
                             FILED 4-4-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-156118-001
                 The Honorable M. Scott McCoy, Judge

  AFFIRMED IN PART, MODIFIED IN PART, VACATED IN PART,
                    AND REMANDED


                                COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Rick Poster, Phoenix
Counsel for Appellant
                          STATE v. HERNANDEZ
                            Opinion of the Court



                                 OPINION

Judge Jennifer M. Perkins delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.


P E R K I N S, Judge:

¶1            Victor Ted Hernandez appeals his convictions and sentences
for three counts of participating in a criminal street gang in violation of
Arizona Revised Statutes (“A.R.S.”) § 13-2321(A). The State charged
Hernandez after law enforcement intercepted two letters he wrote from
prison to members of a criminal street gang. The letters’ contents support
his conviction under § 13-2321(A)(1). Because the letters never reached their
intended recipients, however, Hernandez could be convicted only of
attempted offenses under § 13-2321(A)(2) and (3). Accordingly, we affirm
his conviction and sentence as to the first count, but vacate his other
convictions, modify the judgment as to those convictions, and remand for
resentencing.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2              We view the facts in the light most favorable to sustaining the
convictions. State v. Harm, 236 Ariz. 402, 404, ¶ 3 n.2 (App. 2015). Evidence
at trial established the following: While Hernandez was incarcerated in the
Special Management Unit of the Fourth Avenue Jail, his incoming and
outgoing mail was subject to an order that required a corrections officer to
scan each piece of mail before it could be sent to the post office or delivered
to Hernandez. Hernandez attempted to mail two envelopes labeled “legal
mail,” one addressed to “Villa” and the other to “Lopez,” but a Sheriff’s
Officer recognized the addressees as recipients of nonlegal mail Hernandez
had previously sent. After receiving approval from his supervisor, the
officer opened and inspected the envelopes.

¶3              The Villa envelope contained a handwritten letter and a copy
of a disciplinary action report detailing an assault on an inmate suspected
of cooperating with law enforcement against the Mexican Mafia street gang.
The handwritten letter gave instructions to provide Hernandez’s contact
information to other suspected gang members housed in Fourth Avenue
Jail. It was signed “Gucci Boy,” one of Hernandez’s known aliases.




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                          STATE v. HERNANDEZ
                            Opinion of the Court
¶4            The Lopez envelope contained a filing from Hernandez’s
other legal proceedings interlineated with detailed handwritten
instructions to send a message to “Turtle” that the Mexican Mafia controls
the drug trade. The letter was signed “Death row Lil Chico,” another of
Hernandez’s known aliases. The writing further gave instructions to collect
$5,000–$10,000 in back “taxes” from Turtle, and if Turtle refused to pay, to
burn down a particular business, and then if Turtle still refused to pay, to
burn down another business at a second location. The letter also contained
instructions to set up an outside address for money transfers, as well as
detailed plans to commit robberies, setting forth the necessary weapons and
other equipment, and advising it would be easier to “take out” the intended
victims than to leave them alive.

¶5             Based on the two letters, the State charged Hernandez with
three counts of participating in a criminal street gang, each a class 2 felony.
During his five-day trial, the State presented testimony from multiple law
enforcement officers showing Hernandez’s affiliation with the Mexican
Mafia, testimony from Officer Verdin that Hernandez had written the
letters, and the actual letters themselves. The jury found Hernandez guilty
on each count and then found two aggravating factors—Hernandez
committed the offenses as consideration for something of pecuniary value
and that he committed the offenses with the intent to promote or assist
criminal conduct by a criminal street gang. The court sentenced Hernandez
to twelve years of imprisonment for each count, to be served concurrently,
and an additional five years to be served consecutively to the twelve-year
terms as a gang enhancement.

¶6            After searching the entire record, Hernandez’s defense
counsel identified no arguable, non-frivolous questions of law. In
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), defense counsel requested we search the record for
fundamental error. Hernandez was given an opportunity to file a
supplemental brief in propria persona, but did not do so. In the course of our
Anders review, we identified an issue arguably constituting fundamental
error and ordered the parties to submit supplemental briefs. See Penson v.
Ohio, 488 U.S. 75, 83–84 (1988) (requiring representation when Anders
review discloses an arguable issue). We asked the parties to address
whether the fact that the mail at issue was intercepted requires modification
of the judgment to reflect convictions for attempted participation in a
criminal street gang rather than completed offenses. We also heard oral
argument on the issue.




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                          STATE v. HERNANDEZ
                            Opinion of the Court
                               DISCUSSION

¶7            Hernandez argues that the interception of the letters before
they reached their recipients precludes his convictions for participating in
a criminal street gang. Specifically, Hernandez argues the language of § 13-
2321(A) requires completed communication between a defendant and the
intended recipient of the communication. We agree, and reverse two of
Hernandez’s convictions but conclude that sufficient evidence showed
completed communications as to his conviction under § 13-2321(A)(1).

¶8             We review issues of statutory interpretation de novo. State v.
Estrada, 201 Ariz. 247, 250, ¶ 15 (2001). In doing so, we first look to the
statute’s plain language, which determines the statute’s construction when
the language is clear and unequivocal. Glazer v. State, 244 Ariz. 612, 614, ¶ 9
(2018). As relevant here, § 13-2321(A) states:

       A person commits participating in a criminal street gang by
       any of the following:

       1. Intentionally organizing, managing, directing, supervising
       or financing a criminal street gang with the intent to promote
       or further the criminal objectives of the criminal street gang.

       2. Knowingly inciting or inducing others to engage in violence
       or intimidation to promote or further the criminal objectives
       of a criminal street gang.

       3. Furnishing advice or direction in the conduct, financing or
       management of a criminal street gang’s affairs with the intent
       to promote or further the criminal objectives of a criminal
       street gang.

A.R.S. § 13-2321(A). The jury convicted Hernandez on one count of
participating in a criminal street gang under each of these three subsections.

¶9           Each verb in § 13-2321(A)(1) implies an interaction between
the person doing the organizing, managing, directing, financing, or
supervising, and a criminal street gang. Here, the letters evidence that
Hernandez had managed, directed, and supervised other gang members
before he sent the letters. One of the letters states, “Yourself, Monche,
Demon, Trigger, and Thumper’s name have all come up within the familia,
that not only are you getting money in state, but out of state as well.”
Hernandez also noted that “big jay from SS Chula Vista wanted to help
out,” and that “Myself, along with the other aguilas [gang members] send
our regards.” Thus, even though the letters did not reach their intended


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                          STATE v. HERNANDEZ
                            Opinion of the Court
recipients, they contained evidence from which the jurors could conclude
that Hernandez organized, managed, directed, or supervised gang activity.

¶10            The evidence was insufficient to establish the two other
charges, however. Under § 13-2321(A)(2), “inciting” or “inducing”
individuals to engage in violence on behalf of a criminal street gang
contemplates, at a minimum, some means of communication between the
defendant and intended recipient. This is not to say the State is required to
prove a specific result of a defendant’s conduct but, at a minimum, the State
must show the defendant interacted in some way with the criminal street
gang. We note that this Court has previously held that the term “induce”
(used in a statute proscribing witness tampering, see A.R.S. § 13-2804
(2011)), “requires proof that a defendant knowingly caused a witness . . . to
unlawfully withhold testimony, testify falsely, or fail to appear at an official
proceeding when summoned.” State v. Gray, 227 Ariz. 424, 429, ¶ 18 (App.
2011). The version of A.R.S. § 13-2804 at issue in that case was later amended
to replace “knowingly induces a witness” with “knowingly communicates,
directly or indirectly, with a witness . . ..” Ariz. Sess. Laws 2014, Ch. 144, §
2. But we need not decide whether the State must show a defendant actually
caused a third party to engage in violence or intimidation when charged
with “inducing” or “inciting” under § 13-2321(A)(2). Because Hernandez’s
letters never reached their intended recipients and therefore could not have
caused third parties to engage in violence, or even unsuccessfully
encouraged them to do so, there was insufficient evidence to show
Hernandez violated § 13-2321(A)(2).

¶11           Finally, with respect to Hernandez’s conviction under § 13-
2321(A)(3), the State was required, as relevant here, to show Hernandez
“[f]urnish[ed] advice or direction” to a criminal street gang. As with
subsection (A)(2), a violation of § 13-2321(A)(3) requires the provision of
“advice” or “direction” by completed communication. The State cannot
prove a violation of the statute when the record clearly establishes the
defendant's efforts to furnish advice or instructions were unsuccessful.
Thus, the record in this case is insufficient to support Hernandez’s
conviction for a completed violation of § 13-2321(A)(3).

¶12            When the statute’s plain language is clear, we will not resort
to other methods of statutory interpretation, “such as the context of the
statute, its historical background, its effects and consequences, and the
spirit and purpose of the law.” Gray, 227 Ariz. at 426, ¶ 5. The State argues
that the legislative intent underlying § 13-2321 is, first and foremost, to
prevent members of criminal street gangs from planning and carrying out
crimes before the crimes can be completed. Even assuming there were some
ambiguity in the statute that would lead us to look to other methods of


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                         STATE v. HERNANDEZ
                           Opinion of the Court
statutory interpretation, the State does not explain why a conviction for the
attempted crimes under § 13-2321(A)(2) and (3) somehow fails to achieve
the purpose of preventing these crimes. Although Hernandez’s actions did
not constitute a completed violation of those provisions, his conduct
resulted in criminal offenses, albeit lesser offenses, in accordance with
A.R.S. § 13-1001 (attempt). The legislature certainly could have drafted the
statute to criminalize attempted and completed participation in a criminal
street gang in the same manner. It did not. The statute, as written, is clear.
To convict a defendant of participation in a criminal street gang under § 13-
2321(A)(2) or (3) the State must show, at a minimum, that the defendant’s
efforts to induce or furnish advice to the criminal street gang were known
to the group he intended to induce or advise. Proof of intercepted
communications amounts only to an attempt.

¶13           In sum, a conviction for participating in a criminal street gang
under § 13-2321(A)(2) or (3) that relies on communications sent by the
defendant requires proof, at a minimum, that the addressee or target
actually received the communications. The intended recipients here did not
ever receive Hernandez’s letters. Accordingly, two of Hernandez’s
convictions (under subsections (A)(2) and (A)(3)) must be set aside.
Because, however, the jury’s verdicts on those counts implicitly found
beyond a reasonable doubt that Hernandez attempted to commit the
offenses in violation of §§ 13-1001 and -2321(A)(2) and (3), we modify the
judgment on the second and third counts to reflect that Hernandez was
convicted of the lesser-included offenses of attempted participation in a
criminal street gang. See State v. Garcia, 138 Ariz. 211, 214, 217 (App. 1983)
(modifying conviction when evidence was sufficient only to prove lesser-
included offense).

                               CONCLUSION

¶14            We affirm Hernandez’s conviction and sentence under § 13-
2321(A)(1), but we vacate Hernandez’s convictions and sentences for
participating in a criminal street gang under subsections (A)(2) and (A)(3),
modify the judgment to reflect his convictions for two counts of attempted
participation in a criminal street gang, each a class three felony, and remand
the case for resentencing.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA
                                         6
