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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appellee
,

v.

JANDIN ANTHONY RAUL MU Ñ OZ
, Appellant

.

No. 1 CA

- CR 17

- 0270 1 CA

- CR 17

- 0283 (Consolidated)

Appeal from the Superior Court in Maricopa County

No. CR 2016

- 137390

- 001 CR2015

- 121642

- 001 The Honorable Alfred M. Fenzel
, Judge
, Retired

AFFIRMED

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

Maricopa County Public Defender ' s Office
, Phoenix By Edward F. McGee C ounsel for Appellant FILED 6-5-2018STATE v. MUÑOZ
Decision of the Court

2 MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.

J O H N S E N , Judge :

¶1 Jandin Anthony Raul Muñoz appeals from a sentence entered after the superior court revoked his probation. Muñoz argue s the sentence constituted a consecutive sentence improperly imposed for " a single ac t " under Arizona law

. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The State charged Muñoz with o ne count of stalking (Count 1) and one count of aggravated harassment (Count 2 ), both committed against his ex

- wife, J.R., between January 4 and May 11, 2015

. Muñoz pled guilty to both charges. 1

¶3 At the change

- of

- plea hearing, Muñoz provided a factual basis for the convictions

. For Count 1, Muñoz admitted that between January 4 and May 11, 2015, he knowingly engaged in a " course of conduct " directed at J.R. " that would cause a reasonable person to fear for their safety, and in so doing, did cause [J.R.] to fear for her physical safety. " Muñoz stated the offense in Count 1 involved " text messages sent to the victim where he stated

. . . ' snitches and hoes get killed on sight '" and " I will handle this myself. " Muñ oz added that " over a course of time
, " he sent " a number of other Facebook messages and texts " with the " same type of content. "

¶4 For Count 2
, Muñoz agreed that between January 4 and May 11, 2015
, J.R. had a valid order of protection against him , and that, in violation of that order, he contacted J.R. by " various means " and by doing so, he " harassed her and disturbed her. "

¶5 According to the presentence report , J.R. and her family members contacted police about Muñoz on five diffe rent dates in January, February and May 2015. Over this time period, Muñoz sent J.R. at least 55 text messages , numerous Facebook messages, slash ed her and her father ' s

1 We view the facts in the light most favorable to sustaining the verdicts. State v. Payne , 233 Ariz. 484, 509, ¶ 93 (2013).STATE v. MUÑOZ
Decision of the Court

3 tires, follow ed her vehicle from her residence
, and park ed outside of her
par ents ' residence

. Muñoz also sent J.R. ' s sister the text message, " I kill for fun . . . we love sacrificing bitches like you. " In the presentence report, Muñoz admitted contact ing J.R

. and ma king derogatory statements

. ¶6 Upon acceptance of the plea, the superior court suspended
sentence on Count 1 and imposed a three

- year probation term. On Count 2, the court sentenced Muñoz to one year in prison. Muñoz completed his prison sentence on Count 2 in March 2016 and then began his term of probation for Count 1

. ¶7 Later in 2016
, in Maricopa County Sup erior Court cause number CR2016

- 137390

- 001
, the State charged Muñoz with new crimes : One count of cr iminal damage (Count 1), two count s of assault (Count s 2 and 4 ), one count of kidnapping (Count 3), and one count of sexual assault (Count 5). A jury found Muñoz guilty of Counts 1 , 2, 4 and 5 and of a lesser

included offense in Count 3

. The jury also found Muñoz committed the crimes in the 2016 case while serving his probation term on Count 1 of the 2015 case

. ¶8 At sentencing in the 2016 case, the superior court imposed
concurrent sentences of incarceration, the longest of which was 10.5 years

. The court also found the 2016 convictions constituted grounds to revoke the probation imposed on Count 1 of the 2015 cas e, and sentenc ed Muñoz to a slightly mitigated consecutive one

- year term of imprisonment

. The court explained that it imposed a mitigated term because Muñoz " already served one year in state prison on th e other count " in the 2015 case. Muñoz did not object to imposition of a consecutive sentence

. ¶9 Mu ñ oz timely appeal ed. W e have jurisdiction pursuant to Arizona Revised Statutes ( " A.R.S. " ) sections 12

- 120 .21(A)(1) (2018 ), 2 13

- 4031 (2018 ) , and

- 4033(A)(1) (2018 ). 3

2 Absent material revision after the date of an alleged offense, we cite the current version of a statute or rule.

3 Under circumstances present here, a defendant who is placed on probation pursuant to a plea agreement may appeal a resulting sentence imposed upon revocation of probation

. State v. Regenold , 226 Ariz. 378, 380, ¶¶ 11

- 12 (2011)

.STATE v. MUÑOZ
Decision of the Court

4 DISCUSSION

¶10 On appeal, Muñoz argues the superior court erred in imposing consecutive sentences on Counts 1 and 2 of the 2015 case. Muñoz contends the underlying crimes of stalking and aggravated harassment in the 2015 case were so interrelated they constituted " a single act
, " rendering consecutive sentences impermissible under A.R.S. § 13

- 116 ( 2018 )

. ¶11 Because Muñoz failed to raise this issue in the superior court , we review for fundamental error

. State v. Henderson , 210 Ariz. 561, 567

- 68
, ¶¶ 19

- 20 (2005)

. Imposition of an illegal sentence constitutes fundamental

error. State v. Martinez , 226 Ariz. 221, 224, ¶ 17 (App. 2011)

. ¶12 I n relevant part, § 13

- 116 states , " [a]n act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than
concurrent

. " To determine whether § 13

- 116 bars consecutive sentences, we look to the three

- part test developed in State v. Gordon , 161 Ariz. 308, 315 (1989).

¶13 Under Gordon , we first consider the facts of the underlying crimes , subtracting the evidence needed to establish " the ultimate charge

– the one that is at the essence of the factual nexus and that will often be the most serious of the charges. " Id

. at 3 15

. If what remains is sufficient to prove the elements of the secondary crime , then § 13

- 116 may not bar consecutive sentences. Id

. Second, we determine whether " it was factually impossible to commit the ultimate crime without also committing the secondary crime. If so, t hen the likelihood will increase that the defendant committed a single act under A.R.S. § 13

- 116. " Id

. Third, we consider whether the secondary crime exposed t he victim to " additional risk of harm beyond that inherent in the ultimate crime. If so, then ordinarily the court sh ould find that the defendant committed multiple acts and should receive consecutive sentences. " Id. ; s ee also State v. Roseberry , 210 Ariz. 360, 3 70

- 71, ¶ ¶ 57

- 62 (2005)

. ¶14 Applying Gordon , we turn first to the underlying crimes of stalking and aggravate d harassment

. To prove Muñoz committed the crime of stalking, the State had to show that he (1) intentionally or knowingly engaged in a course of conduct directed toward J.R. that would cause a reasonable person to fear for her safety or the safety of an immediate family member ; and ( 2 ) J.R. did in fact fear for her safety or the safety of herSTATE v. MUÑOZ
Decision of the Court

5 immediate family

. A.R.S. § 13

- 2923(A)(1) (2015 )

. 4 A " course of conduct " includes " [m] aintaining visual or physical proximity to a specific person or directing verbal, written or other threats, whether express or implied, to a specific person on two or more occasions over a period of time, however short

. " A.R.S. § 13

- 2923( C)( 1)(a)(i) (2015)

. An " immediate family member " include s a sibling

. A.R.S. § 13

- 2923(C)( 2 ) (2015)

. ¶15 To prove Muñoz committed the crime of aggravated harassment
, the State had to show that ( 1) with the intent to harass, he
contact ed , communicat ed or caus ed a communication with J.R. , continued to follow J.R. in a public place for no legitima te purpose after being asked to stop , or repeatedly committed an act or acts that harassed J.R. ; and ( 2 ) did so while there was a valid order of protection against Muñoz

. A.R.S. §§ 13

- 2921(A)(1)

- (3) (201 8)
, - 2921.01(A)(1) (20 18 )

. The relevant statute de fines

" harassment " as " conduct that is directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed or harassed and the conduct in fact serious ly alarms, annoys or harasses the person. " A.R.S. § 13

- 2921 (E).

¶16 Applying the first test under Gordon , we determine whether
, after subtracting evide nce needed to establish the " ultimate charge " of stalking , evidence remains to prove aggravated harassment. In the two text messages cited in the presentence report and at the change

- of

- plea hearing
, Muñoz threatened to hurt or kill J.R. and her siste r

. Muñoz also sent Facebook messages, damaged property, followed J.R.
, and went to her parents ' residence

. For the crime of stalkin g , the State need ed to prove Muñoz directed threats toward J.R. on only two occasions. See A.R.S. § 13

- 2923(C)(1)(a)(i) (2015)

. The text messages specifically cited i n the record, by themselves, would have supported the stalking conviction if (and Muñoz does not dispute this) they caused J.R. to fear for her and her sister ' s safety. Subtracting the text messages , sufficient evid ence remained to prove Muñoz repeatedly contacted, followed and communicated with J.R. in a harassing manner in violation of a valid order of protection

. ¶17 U nder the second prong of Gordon
, the record shows it was factually possible for Muñoz to commit each of the underlying crimes without committing the other

. Again, Muñoz repeatedly contacted and communicated with J.R. on several occasions over the course of four months. Because Muñoz could have commit t ed stalking by sending only
two of these communication s , he could have committed the crime of

4 T he relevant crimes pre

- date th e 2016 amendment to A.R.S. § 13

- 2923

. See H.B. 2419, 52d Leg., 2d Reg. Sess., Ariz. Laws 2016, Ch. 44, § 1.STATE v. MUÑOZ
Decision of the Court

6 aggravated harassment by hi s other harassing condu ct. Similarly, the validity of the order of protection is relevant only to the crime of aggravated harassment.

¶18 Evaluating the facts under the final issue from Gordon , we reach a similar result. Although both of Muñoz 's crimes occurred over the same four

- month period, they caused separate and distinct types of harm to the victim and the community

. In committing stalking by sending the two cited text messages, Muñoz caused J.R. to live in fear for her and her sister ' s saf ety

. In committing aggravated harassment, Muñoz ' s repetitive conduct and utter disregard for a court order caused J.R. to suffer additional emotional harm

. Moreover, a violation of a court order undermine s the efficacy of the judicial system and harms the community

. ¶19 Based on the foregoing principles , the crimes of stalking an d aggravated harassment in this case did not constitute " a single act
, " and the superior court did not err in imposing consecutive sentences.

CONCLUSION

¶20 For the foregoing reasons, we affirm the sentence imposed on the stalking conviction.