                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                AND MAYBE BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                    DANNY RAY ENRIQUEZ Appellant.

         Nos. 1 CA-CR 14-0235; 1 CA-CR 14-0256 (Consolidated)
                          FILED 3-3-2015


         Appeal from the Superior Court in Maricopa County
      Nos. CR2012-143397-002; CR2013-439984-001 (Consolidated)
               The Honorable Jeanne M. Garcia, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adriana M. Zick
Counsel for Appellee

Maricopa County Office of the Legal Defender, Phoenix
By Marty Lieberman
Counsel for Appellant
                           STATE v. ENRIQUEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia K. Norris joined.


H O W E, Judge:

¶1             Danny Ray Enriquez appeals the trial court’s finding of his
probation status for sentencing purposes and its sentencing order for case
CR2012-143397-002 (“2012 offense”). For the following reasons, we affirm
the court’s finding of Enriquez’s probation status and correct his sentence
for the 2012 offense to include 23 days of presentence incarceration credit.

                FACTS AND PROCEDURAL HISTORY

¶2            Around noon on August 21, 2013, Sergio Fregoso was “just
hanging out” in his backyard when he heard a car drive through his back
alley. The car stopped in the alley between his house and one of his
neighbors’ houses. Fregoso climbed onto a fountain in his yard to see what
was happening. Two “young kids” got out of the car and jumped over his
neighbor’s six-foot cinder block wall. Fregoso saw the kids enter his
neighbor’s arcadia window, carry a flat screen television out of the house
and over the wall, and place it into their car. They then drove away. Fregoso
did not call the police because he “figured that was it” and “didn’t expect
much more to come of it.”

¶3            Twenty minutes later, still out in his backyard, Fregoso saw
two individuals enter the same neighbor’s house, although he was not sure
whether they were the same individuals as before. These two individuals
also climbed the cinder block wall and entered the home. Fregoso called the
police and told the operator that two kids had broken into his neighbor’s
house 20 minutes ago and that two other individuals had entered the same
house. But he was unable to see what the individuals were doing inside the
house. Although he heard glass and bottles move inside the house, Fregoso
heard no voices. He saw one of the individuals “peeking through the side
gate and the wall.” The call ended when Fregoso heard a helicopter flying
over his house, indicating that the police had arrived. The call lasted about
nine minutes.




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                            STATE v. ENRIQUEZ
                            Decision of the Court

¶4              According to Fregoso, soon after Officer Darrell Kriplean
arrived at the scene, the officer told the “peeking” individual—who turned
out to be Enriquez—to “hop over the fence.” Enriquez did so and admitted
to the officer that he had entered the house. While Officer Kriplean was with
Enriquez, Officer James Clark did a protective sweep of the house and
found no one. He then drove to Fregoso’s house and brought him to the
scene. Fregoso then identified Enriquez as one of the individuals he had
seen earlier.

¶5            Enriquez was arrested and charged with one count of
burglary in the second degree (“2013 offense”). At trial, Officers Kriplean
and Clark, and Fregoso made in-court identifications of Enriquez.
Enriquez testified on his behalf. He said that on August 21, 2013, he was
riding his bike through his back alley in search of plastic or cans to trade for
cash. From the corner of his eye he saw a “shattered window, a broke – a
kitchen window.” He also saw that the arcadia door was “wide open,” so
he “hopped over to see if anybody was inside the house.” He entered the
house, but did not see anyone inside. He testified that no one responded
when he asked, “[I]s there anyone in the house? If you hear me say
something.” Because he saw no one inside, he left the house and then heard
the helicopter above. The helicopter pilot ordered him to “go to the front of
the house.” He complied and met Officer Kriplean, who told him “to hop
over the fence.”

¶6           While the jury was deliberating, the court asked the State
whether it gave “any thought to the aggravation phase” and if it needed to
address aggravation “before sentencing or . . . [did the State] want the jury
to determine the probation issue?” The State replied: “That can be done at
sentencing.” Defense counsel did not object. The jury returned and found
Enriquez guilty.

¶7             At Enriquez’s sentencing hearing, the trial court stated that
the State had to prove that Enriquez was on probation at the time he
committed his 2013 offense, unless Enriquez admitted or conceded that he
was on probation. Enriquez’s counsel stated, “[H]e will admit to the Court
that he was on probation.” When the court asked Enriquez whether he was
willing to stipulate that he was on probation, he responded, “That’s fine.”

¶8             The State then read the details of the 2012 offense that gave
rise to his probation into the record: “He was on probation for a possession
of burglary tools felony, committed on August 18th, 2012. That he was on
two years of unsupervised probation, and on the date of this offense,
August 21, 2013, he was still on probation on that matter, CR2012-143397-


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                            STATE v. ENRIQUEZ
                            Decision of the Court

002.” The court added that it sentenced Enriquez on January 30, 2013, to
two years of probation. When the court asked Enriquez whether the court
or the State had said anything he disagreed with, Enriquez responded no.
The court found that Enriquez was on probation when he committed the
2013 offense.

¶9            Based on the determination of guilt and the fact that Enriquez
was on probation when the 2013 offense occurred, the trial court sentenced
him to the presumptive term of incarceration with one prior felony
conviction. Thus, for the 2013 offense, the court ordered 6.5 years of
imprisonment with 154 days of presentence incarceration credit. For the
2012 offense, the court revoked Enriquez’s probation and sentenced him to
six months’ imprisonment, to run consecutively with the 2013 offense, with
no presentence incarceration credit. After sentencing, pursuant to A.R.S. §
13–603(L), the court found that the sentence imposed for the 2013 offense
was “clearly excessive.” It recommended that the Board of Executive
Clemency modify Enriquez’s sentence to a term of 1.75 years of
incarceration. Enriquez timely appealed the 2013 and 2012 offenses. We
consolidated the cases.

                               DISCUSSION

              1. Probation Status

¶10             Enriquez argues that absent an effective waiver, the trial court
erred by finding that he was on probation when he committed the 2013
offense because a jury should have determined his probation status. We
review de novo sentencing issues regarding constitutional law. State v.
Lizardi, 234 Ariz. 501, 504 ¶ 12, 323 P.3d 1152, 1155 (App. 2014). Because the
trial court’s finding of Enriquez’s probation status did not prejudice him,
we find no fundamental error and therefore affirm.

¶11           Pursuant to the Sixth Amendment right to a jury trial, any
fact—other than the fact of a prior conviction—that increases the prescribed
statutory maximum penalty must be submitted to a jury and proved
beyond a reasonable doubt. State v. Large, 234 Ariz. 274, 278 ¶ 12, 321 P.3d
439, 443 (App. 2014) (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).
The right applies with equal force to facts that increase the prescribed
statutory minimum penalty. Id. (citing Alleyne v. United States, 133 S. Ct.
2151, 2160 (2013)). Because a finding of probation status increases a
minimum sentence, it must be submitted to a jury and found beyond a
reasonable doubt. See State v. Gross, 201 Ariz. 41, 45 ¶ 19, 31 P.3d 815, 819
(App. 2001); Large, 234 Ariz. at 280 ¶ 16, 321 P.3d at 445 (extending Gross to



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                            STATE v. ENRIQUEZ
                            Decision of the Court

a defendant’s release status when it will expose him to a higher mandatory
minimum sentence). But a defendant may waive this right if his stipulation
is made knowingly, voluntarily, and intelligently. State v. Brown, 210 Ariz.
534, 543 ¶ 24, 115 P.3d 128, 137 (App. 2005); see also State v. Brown, 212 Ariz.
225, 231 ¶ 26, 129 P.3d 947, 953 (2006) (citing Blakely v. Washington, 542 U.S.
297, 310 (2004)) (“[T]he Sixth Amendment right to jury trial with respect to
an aggravating factor necessary to impose a sentence remains inviolate
unless . . . the defendant has appropriately waived his right to jury trial with
respect to these aggravating factors.”).

¶12           A denial of this right—“Apprendi error”—constitutes “trial
error, reviewable as either harmless or fundamental error.” Lizardi, 234
Ariz. at 506 ¶ 18, 323 P.3d at 1157. When a party fails to object properly,
however, we review solely for fundamental error. State v. Lopez, 217 Ariz.
433, 435 ¶ 4, 175 P.3d 682, 684 (App. 2008) (citing State v. Henderson, 210
Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005)). Fundamental error is “error
going to the foundation of the case, error that takes from the defendant a
right essential to his defense, and error of such magnitude that the
defendant could not possibly have received a fair trial.” Henderson, 210 Ariz.
at 567 ¶ 19, 115 P.3d at 607 (citation omitted). A defendant must establish
both that fundamental error exists and that the error caused him prejudice.
Id. ¶ 20. Apprendi error is prejudicial if the defendant shows that “a
reasonable jury, applying the appropriate standard of proof, could have
reached a different result than did the trial judge.” Id. at 569 ¶ 27, 115 P.3d
at 609.

¶13           Enriquez argues that admitting his probation status did not
waive his Apprendi right because the waiver was not knowing or intelligent.
But we need not decide whether the colloquy between the trial court and
Enriquez was sufficient such that he waived his right. To the extent that it
was insufficient, any error did not prejudice him because no reasonable jury
could have reached a different result than did the trial court.

¶14           The record shows unequivocally that Enriquez was on
probation when he committed the 2013 offense. Enriquez testified at trial
that he was convicted of a felony and sentenced on January 30, 2013. He
admitted during his sentencing hearing that on the date of the 2013 offense,
he was still on probation, which began on January 30, 2013, for possession
of burglary tools, a felony. The same judge presided over his 2013 and 2012
offenses and stated that it sentenced him on January 30, 2013, for the 2012
offense. Enriquez’s Department of Correction (“DOC”) record—which the
trial court had and which includes his photograph and date of birth—
established that he was placed on probation for two years beginning


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                           STATE v. ENRIQUEZ
                           Decision of the Court

January 30, 2013, for possession of burglary tools, a class six felony. No
evidence challenges the accuracy of the DOC record.

¶15            Enriquez counters, however, that he was prejudiced because
had he known of his right for a jury to determine his probation status, he
would not have stipulated it. We disagree. Fundamental error review
places the burden on Enriquez to show that “a reasonably jury, applying
the appropriate standard of proof, could have reasoned a different result.”
Henderson, 210 Ariz. at 569 ¶ 27, 115 P.3d at 609. The inquiry does not focus
on what Enriquez should have known, but rather on if a reasonable jury
could have reached a different result than did the trial court. We conclude
that it could not.

¶16            Enriquez further maintains that he was constitutionally
entitled to have his probation status determined by the same jury that
decided guilt. We disagree. “[A] defendant holds no absolute right to a
penalty trial with the same judge or jurors who heard the evidence on
guilt.” State v. Anderson, 210 Ariz. 327, 347 ¶ 81, 111 P.3d 369, 389 (2005)
(citing State v. Ring, 204 Ariz. 534, 551 ¶¶ 39–40, 65 P.3d 915, 932 (2003)).
Accordingly, based on the evidence showing that Enriquez was on
probation when he committed the 2013 offense, a reasonable jury would
not have reached a different result than did the trial court. Enriquez was
not prejudiced by the court’s finding of his probation status, and
consequently, he has not established fundamental error.

              2. Presentence Incarceration Credit

¶17            Enriquez contends—and the State agrees—that the trial court
erred by not granting him presentence incarceration credit for his 2012
offense. Specifically, he argues that he was in custody from August 15, 2012,
to September 6, 2012, pending resolution of his 2012 offense, and therefore,
he is entitled to 23 days of presentence incarceration credit. We agree. See
A.R.S. § 13–712(B) (providing that a defendant is entitled to credit for “[a]ll
time actually spent in custody” credited against the term of imprisonment
imposed). Consequently, we correct Enriquez’s sentence for the 2012
offense to include 23 days of presentence incarceration credit. See A.R.S. §
13–4037 (providing that an appellate court may “correct the sentence to
respond to the verdict or finding”); Ariz. R. Crim. P. 31.17 (providing that
an appellate court may “reverse, affirm, or modify the action of the lower
court and issue any necessary and appropriate orders”).




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                          STATE v. ENRIQUEZ
                          Decision of the Court

                             CONCLUSION

¶18           For the foregoing reasons, we affirm the trial court’s finding
of Enriquez’s probation status and correct his sentence for the 2012 offense
to include 23 days of presentence incarceration credit.




                                 :ama




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