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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        ANGEL DURAZO, Appellant.

                             No. 1 CA-CR 15-0373
                               FILED 4-28-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-123461-001
                 The Honorable Hugh E. Hegyi, Judge

                                  AFFIRMED


                                   COUNSEL

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

Janelle A. McEachern, Phoenix
Counsel for Appellant

Angel Durazo, Florence
Appellant
                            STATE v. DURAZO
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Peter B. Swann joined.


J O N E S, Judge:

¶1            Angel Durazo appeals his conviction and sentence for one
count of unlawful flight from a pursuing law enforcement vehicle. After
searching the entire record, Durazo’s defense counsel has identified no
arguable question of law that is not frivolous. Therefore, in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), defense counsel asks this Court to search the record for fundamental
error. Durazo thereafter filed a supplemental brief in propria persona. After
reviewing the record, we find no error. Accordingly, Durazo’s conviction
and sentence are affirmed.

                 FACTS1 AND PROCEDURAL HISTORY

¶2             On May 16, 2014, as part of an investigation of an unrelated
matter, Phoenix Police Department officers in two marked law enforcement
vehicles activated their lights and sirens behind a 2005 Chevrolet Monte
Carlo registered to Durazo’s mother and known to be regularly driven by
Durazo. At the time, the Monte Carlo was turning into the parking lot of a
shopping center at the corner of 67th Avenue and Thomas Road in Phoenix.
The driver initially appeared startled by the noise. But, he looked back at
the officers, completed his turn, continued through the parking lot, and
exited onto Thomas Road without stopping, despite numerous
opportunities to have done so. The officers terminated their attempt to stop
the vehicle after approximately thirty seconds, but by that time, had
identified Durazo as the driver.




1      We view the facts in the light most favorable to sustaining the jury’s
verdict, with all reasonable inferences resolved against the defendant. State
v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).



                                       2
                            STATE v. DURAZO
                            Decision of the Court

¶3            Thirty minutes later, the Monte Carlo returned to Durazo’s
residence approximately one and a half miles away. Durazo was later
located at his home and arrested without incident. He was charged with
one count of unlawful flight from a pursuing law enforcement vehicle in
violation of Arizona Revised Statutes (A.R.S.) section 28-622.01,2 a class five
felony, and was tried before a jury in December 2014.

¶4            Following presentation of the State’s evidence, Durazo
unsuccessfully moved for judgment of acquittal pursuant to Arizona Rule
of Criminal Procedure 20(a). The jury found Durazo guilty as charged and
also determined he had committed the offense while on probation. The
State proved one prior felony conviction, and the trial court sentenced
Durazo as a non-dangerous, repetitive offender to the presumptive term of
2.25 years’ imprisonment with credit for 371 days of presentence
incarceration.

¶5            Durazo filed a motion for new trial, which was denied.
Durazo timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1), 13-4031, and -4033(A)(1), (2).

                                DISCUSSION

I.     Probable Cause for Indictment

¶6             Durazo argues the grand jury proceedings were deficient
because “the story was exaggerated alot [sic] and key facts were left out.”
A challenge to a grand jury’s finding of probable cause must be made by a
motion for remand and may be reviewed by this Court only upon the filing
of a petition for special action relief prior to trial. State v. Moody, 208 Ariz.
424, 439-40, ¶ 31 (2004). An exception exists where a defendant stands trial
on an indictment which the State knew was based on perjured material
testimony. Id.

¶7            Here, Durazo filed a motion for remand to the grand jury for
a new determination of probable cause, which was denied. But, he did not
then petition for special action relief. Because Durazo does not now allege
the State knowingly proceeded with an indictment based upon perjured
testimony, the grand jury’s finding of probable cause is not reviewable on
direct appeal.



2     Absent material changes from the relevant date, we cite a statute’s
current version.

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                             STATE v. DURAZO
                             Decision of the Court

II.    Request for Jury Instruction on a Lesser Included Offense

¶8             Durazo also argues the trial court erred in refusing to instruct
the jury on failure to stop, A.R.S. § 28-1595, as a lesser included offense of
unlawful flight. However, this Court has previously held that failure to
stop is not a lesser included offense of flight from a law enforcement
vehicle, State v. Fiihr, 221 Ariz. 135, 138, ¶ 12 (App. 2008) (citing In re Victoria
K., 198 Ariz. 527, 531, ¶ 17 (App. 2000)), and we find no error.

III.   Probable Cause to Initiate the Traffic Stop

¶9            Durazo also argues his conviction was in error because, he
contends, the officers lacked probable cause to initiate a traffic stop of the
Monte Carlo and did so only as a ruse to create an opportunity to search
Durazo’s home for evidence related to an investigation of his brothers.
Although there was significant discussion between the parties regarding
the reason for the stop, the jury did not hear any evidence on the issue and
was instead advised by the trial court, with Durazo’s consent, that “the
sergeant wanted to talk to Mr. Durazo about an unrelated matter, and that’s
why he requested the traffic stop.” Durazo now claims he was denied a
right to a fair trial because he was not permitted to question the law
enforcement officers regarding the reason for the stop, and therefore, the
jurors did not hear the “whole truth.”

¶10            Even if the circumstances alleged by Durazo are true, the
motivation for the stop is irrelevant to the offense charged. The propriety
of an officer’s direction to a driver to stop is not an element of the offense
of unlawful flight. Compare A.R.S. § 28-622.01 (stating a person commits a
class five felony if he “willfully flees or attempts to elude a pursuing official
law enforcement vehicle”), with A.R.S. § 28-622 (specifying “[a] person shall
not willfully fail or refuse to comply with any lawful order or direction of a
police officer”) (emphasis added). Moreover, permitting a driver to ignore
what he perceives to be an improper request of law enforcement
contravenes one of the basic purposes of A.R.S. § 28-622.01: to proscribe
conduct which might lead to vehicular accidents or other danger to the
public inherent in a vehicular pursuit. See State v. Fogarty, 178 Ariz. 170,
171-72 (App. 1993) (holding that “any refusal to stop on command of an
officer who is in a police car violates the felony flight statute because of the
potential for personal danger inherent in vehicular pursuit”). Testimony
regarding the reason for the stop was irrelevant and inadmissible pursuant
to Arizona Rule of Evidence 402 (“Irrelevant evidence is not admissible.”).




                                         4
                            STATE v. DURAZO
                            Decision of the Court

IV.    Impartiality or Bias of Trial Court Judge

¶11           Durazo argues the trial court judge improperly denied his
pre- and post-trial motions as a result of personal bias. Specifically, Durazo
contends his brothers were tried and acquitted of unrelated criminal
charges in the same division, and the judge “was upset about the outcome
. . . and wanted to get back at the family by denying Mr. Durazo all his
motion[s].” Durazo did not ask that the judge be recused in the trial court
proceedings, and we therefore review only for fundamental error. See State
v. Curry, 187 Ariz. 623, 631 (App. 1996) (noting a defendant who fails to
submit written motion and affidavit asserting cause for recusal, as required
by Arizona Rule of Criminal Procedure 10.1(b), waives all but fundamental
error review).

¶12             The right to a fair trial is “the foundation” of our judicial
system. State v. Carver, 160 Ariz. 167, 172 (1989). However, we presume the
trial court is impartial; therefore, the party seeking recusal bears the burden
of proving bias or prejudice by a preponderance of the evidence. Id.
(citations omitted). A judge’s prior dealings or familiarity with a defendant
or his circumstances does not, absent a showing of bias or prejudice, require
recusal. See State v. Munoz, 110 Ariz. 419, 421 (1974) (finding no reason to
disqualify judge where “the defendant was no stranger to the trial judge
and over the years she had been before him as a juvenile and her name had
been prominent in other [criminal] activities in the . . . area”); State v.
Thompson, 150 Ariz. 554, 557 (App. 1986) (agreeing that a judge need not
recuse himself from a criminal case “‘merely because he has heard
unfavorable remarks about the defendant in the course of prior litigation’”)
(quoting Commonwealth v. Campbell, 366 N.E.2d 44, 57 (1977)).

¶13            Moreover, Durazo does not offer any proof, nor do we find
any evidence suggesting, the trial court judge’s partiality could reasonably
be questioned. To the contrary, the judge’s willingness to listen to the
parties’ arguments and the careful reasoning given to support his rulings
throughout the trial evidence his commitment to impartiality. Our review
of the law and circumstances surrounding Durazo’s motions indicate the
trial court acted within its discretion in its ruling on each.

V.     Prosecutorial Misconduct

¶14          Durazo also argues he was denied a fair trial as the result of
prosecutorial misconduct on the basis that: (1) the State “changed their
probable cause” for the stop during the course of the trial, and (2) the State
knew of the trial court judge’s involvement with Durazo’s brothers’ case



                                      5
                           STATE v. DURAZO
                           Decision of the Court

and “never tr[i]ed to fix the issue.” However, neither circumstance
constitutes misconduct, let alone misconduct sufficient to warrant reversal
of Durazo’s conviction.

¶15            First, we have already determined the reason for the stop was
immaterial to the charge. See supra Part III. Additionally, no allegation has
been made that the prosecutor knowingly used perjured testimony or failed
to comply with disclosure requirements designed to advise the defendant
of the case against him. In fact, the State did not present any testimony or
evidence regarding the grounds for the stop, agreeing instead the trial court
judge would provide the information in a neutral manner that would avoid
prejudice to Durazo. There is no indication within the record on appeal that
the prosecutor acted in any fashion to undermine Durazo’s defense or
ability to prepare for trial.

¶16            Second, we have also already determined Durazo’s argument
that the trial court judge was biased is without merit and insufficient to
establish he was denied a fair trial. See supra Part IV. Thus, even if the
prosecutor knew of the judge’s involvement in Durazo’s brothers’ case —
of which there is no evidence in the record — and had an obligation to
disclose that information to the court — any evidence of which we are not
aware — any such error was harmless. See State v. Hughes, 193 Ariz. 72, 80,
¶ 32 (1998) (“Prosecutorial misconduct is harmless error if we can find
beyond a reasonable doubt that it did not contribute to or affect the
verdict.”).

VI.    Motion for New Trial

¶17             Durazo filed a motion for new trial alleging he was denied a
fair trial after a juror reported being aware Durazo was in custody during
the course of the trial. We review the denial of a motion for new trial for an
abuse of discretion. State v. Ruggiero, 211 Ariz. 262, 264, ¶ 6 (App. 2005)
(citing State v. Hoskins, 199 Ariz. 127, 142, ¶ 52 (2000)).

¶18           The record reflects that, on the first day of trial, Juror 10
observed a uniformed police officer putting on gloves at a break in the
proceedings. Based on his own prior experience in law enforcement, Juror
10 knew the officer would put gloves on prior to making physical contact
with an inmate and concluded Durazo was in custody. After the jury
returned a guilty verdict during the guilt phase, Juror 10 commented to
other jurors that Durazo would be going back into custody. After Durazo
filed the motion for new trial, the trial court interviewed the jury panel.
Four jurors recalled hearing Juror 10’s remark, but recalled either no or very



                                      6
                           STATE v. DURAZO
                           Decision of the Court

brief discussion regarding Durazo’s circumstances.       After hearing this
testimony, the court denied the motion, concluding:

       [T]he improper information provided the jury by Juror 10 was
       limited, there was only a brief further discussion, the
       discussion occurred at a phase in the proceedings in which
       many jurors would have assumed that the Defendant would
       be incarcerated because of the preceding conviction, and the
       emotional impact on the jury of viewing Defendant in jail or
       prison garb did not occur. The Court finds the information
       did not taint the jury during its deliberations as to the
       aggravating circumstances of whether Defendant was on
       probation at the time of the instant offense.

¶19           On this record, we cannot say the trial court abused its
discretion in denying Durazo’s motion for new trial where it did not find
any indication the jury was influenced by Juror 10’s belief that Durazo was
in custody during the course of the trial. Further, Durazo has presented no
evidence that his defense was prejudiced in any fashion, particularly where
a typical juror might assume Durazo would be incarcerated during the
aggravation stage anyway. See, e.g., State v. Streett, 11 Ariz. App. 211, 215
(1969) (affirming denial of motion for mistrial where “no showing of actual
prejudice has been demonstrated”).

VII.   Jury Instructions

¶20          Although not raised by Durazo or his counsel, our review
reveals an error in the trial court’s instructions to the jury. Durazo was
charged with a violation of A.R.S. § 28-622.01, which provides:

       A driver of a motor vehicle who willfully flees or attempts to
       elude a pursuing official law enforcement vehicle that is being
       operated in the manner described in [A.R.S.] § 28-624,
       subsection C is guilty of a class 5 felony. The law enforcement
       vehicle shall be appropriately marked to show that it is an
       official law enforcement vehicle.

Section 28-624(C) requires the driver of the marked law enforcement vehicle
to “sound[] an audible signal by bell, siren or exhaust whistle as reasonably
necessary.”




                                     7
                            STATE v. DURAZO
                            Decision of the Court

¶21           Regarding the elements of the offense, the jury was
instructed:

       The crime of unlawful flight from a pursuing law
       enforcement vehicle requires proof of the following:

              One, the defendant, who was driving a motor vehicle,
       willfully fled or attempted to elude a pursuing official law
       enforcement vehicle;

             And two, that the law enforcement vehicle was
       appropriately marked showing it to be an official law
       enforcement vehicle.

The requirement that the pursuing law enforcement vehicle sound a bell,
siren, or whistle was omitted from the instruction.

¶22            Although the direction provided the jury was not an ideal,
complete instruction on the elements of unlawful flight, but see State v.
Martinez, 230 Ariz. 382, 384, ¶ 8 (App. 2012) (defining “the essential
elements of the crime of unlawful flight” without mentioning the
requirements contained in A.R.S. § 28-624(C)), the evidence clearly
indicates the drivers of two marked law enforcement vehicles activated
their sirens after being directed to initiate a traffic stop of the Monte Carlo.
The evidence therefore supports all elements of the charge, and there was
no fundamental error to Durazo. See State v. Ramirez, 115 Ariz. 70, 73 (App.
1977) (concluding there was no fundamental error where evidence
supported an element on which the trial court failed to instruct the jury).

VIII. Sufficiency of the Evidence

¶23            Within his supplemental brief, Durazo argues the State
presented insufficient evidence upon which the jury could find essential
elements of the crime, including that: (1) Durazo was the driver of the
vehicle; (2) Durazo was aware he was being pursued by a law enforcement
vehicle and therefore acted willfully; and (3) Durazo fled or attempted to
elude the law enforcement vehicle. We review de novo the sufficiency of the
evidence to support a conviction. State v. West, 226 Ariz. 559, 562, ¶ 15
(2011) (citing State v. Bible, 175 Ariz. 549, 595 (1993)). In the course of our
review:

       [T]he relevant question is whether, after viewing the evidence
       in the light most favorable to the prosecution, any rational
       trier of fact could have found the essential elements of the


                                       8
                             STATE v. DURAZO
                             Decision of the Court

       crime beyond a reasonable doubt. . . . “Substantial evidence,”
       Rule 20’s lynchpin phrase, “is such proof that ‘reasonable
       persons could accept as adequate and sufficient to support a
       conclusion of defendant’s guilt beyond a reasonable doubt.’”
       . . . Both direct and circumstantial evidence should be
       considered in determining whether substantial evidence
       supports a conviction.

Id. at ¶ 16 (citations omitted).

¶24            We conclude sufficient circumstantial evidence was
presented upon which the jury could determine beyond a reasonable doubt
that Durazo was driving the vehicle, knew he was being pursued by a law
enforcement vehicle, and chose to continue driving. See generally State v.
Montano, 121 Ariz. 147 (App. 1978) (affirming conviction for unlawful flight
from a law enforcement vehicle where seven witnesses controverted
arresting officer’s testimony that he activated the vehicle’s lights and siren).
At trial, three different officers positively identified Durazo as the driver of
the vehicle. Contrary to Durazo’s assertions, the State is not required to
prove a driver took evasive action or traveled at a high rate of speed, but
only that he refused to stop upon the command of an officer traveling in a
law enforcement vehicle. Fogarty, 178 Ariz. at 171. And, as the trial court
correctly noted when it denied Durazo’s Rule 20 motion, “The willfulness
element is not something that is normally determined by a specific
admission.      It’s something that is inferred from the surrounding
circumstances.” See State v. Lester, 11 Ariz. App. 408, 410 (1970) (“[T]he
requisite intent is a state of mind which is seldom, if ever, susceptible of
proof by direct evidence and must ordinarily be proven by circumstantial
evidence.”) (citing State v. Gammons, 133 S.E.2d 649, 756 (N.C. 1963)). The
evidence indicates Durazo failed to stop when being followed by officers
driving two marked law enforcement vehicles and operating their lights
and sirens and is sufficient to establish his conduct was willful.

IX.    Presentence Report

¶25           Our review of the record also reveals that, although a
presentence report was prepared and disseminated to the parties prior to
sentencing, the report was not filed with the court. The record does not
conclusively establish whether the trial court judge received or reviewed
the presentence report prior to sentencing.




                                       9
                            STATE v. DURAZO
                            Decision of the Court

¶26             Generally, failure to review the pre-sentence report prior to
imposing sentence is error. State v. Clabourne, 142 Ariz. 335, 346 (1984). But,
we find no prejudice to Durazo in the error. The report does not contain
any information helpful to Durazo, who refused to participate in an
interview with the writer. See id. (finding no reversible error where court
on review “find[s] little in the pre-sentence report which would be of help
to the defendant”). Additionally, Durazo cannot establish prejudice
because he received the minimum sentence available to him. See A.R.S. §§
13-703(B), (I), -708(C). Therefore, there is no fundamental error. See State v.
Henderson, 210 Ariz. 561, 567, ¶ 20 (2005) (“To prevail under [fundamental
error review], a defendant must establish both that fundamental error exists
and that the error in his case caused him prejudice.”).

X.     Fundamental Error Review

¶27            Further review reveals no fundamental error. See Leon, 104
Ariz. at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”). All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure. So far as the record reveals,
Durazo was represented by counsel at all stages of the proceedings and was
present at all critical stages including the entire trial and the verdict.

¶28            The jury was properly comprised of eight jurors, and the
record shows no evidence of jury misconduct. See A.R.S. § 21-102(B); Ariz.
R. Crim. P. 18.1(a). At sentencing, Durazo was given an opportunity to
speak, and the trial court stated on the record the evidence and materials it
considered and the factors it found in imposing sentence. See Ariz. R. Crim.
P. 26.9, 26.10. Additionally, the sentence imposed was within the statutory
limits. See A.R.S. § 13-703(B), (I).

                               CONCLUSION

¶29           Durazo’s conviction and sentence are affirmed. Defense
counsel’s obligations pertaining to Durazo’s representation in this appeal
have ended. Defense counsel need do no more than inform Durazo of the
outcome of this appeal and his future options, unless, upon review, counsel
finds an issue appropriate for submission to our supreme court by petition
for review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984).

¶30            Durazo has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.




                                      10
                           STATE v. DURAZO
                           Decision of the Court

R. Crim. P. 31.19(a). Upon the Court’s own motion, we grant Durazo thirty
days from the date of this decision to file an in propria persona motion for
reconsideration.




                                  :ama




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