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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

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 

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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)). 
STATE v. DURAZO 

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3

¶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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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.”).
STATE v. DURAZO 

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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 
STATE v. DURAZO 

Decision of the Court 

6

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 
STATE v. DURAZO 

Decision of the Court 

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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.”
STATE v. DURAZO 

Decision of the Court 

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¶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 
STATE v. DURAZO 

Decision of the Court 

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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. 
STATE v. DURAZO 

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¶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. 
STATE v. DURAZO 

Decision of the Court 

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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.