Court of Appeals of Arizona, First Division, Department E
(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County Cause No. CR2011-125677-001 The Honorable Carolyn Passamonte, Judge Pro Tempore
Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee
James Haas, Maricopa County Public Defender Phoenix By Cory Engle, Deputy Public Defender Attorneys for Appellant
Daniel William Almaraz Tucson Appellant
MICHAEL J. BROWN, Judge
¶1 Daniel William Almaraz appeals his conviction and sentence for burglary. Counsel for Almaraz filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that after searching the record on appeal, she was unable to find any arguable grounds for reversal. Almaraz was granted the opportunity to file a supplemental brief in propria persona, and he has done so.
¶2 We review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We view the facts in the light most favorable to sustaining the conviction and resolve all reasonable inferences against Almaraz. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
¶3 In June 2011, the State charged Almaraz with burglary in the third degree, a class 4 felony in violation of Arizona Revised Statutes ("A.R.S.") section 13-1506. The following evidence was presented at trial.
¶4 Barlow Distribution, a business that delivers and installs appliances to new homes, has a fenced yard at its facility in Tolleson. At 12:43 a.m. on May 20, 2011, security cameras recorded two individuals jumping into Barlow's fenced yard. Employees at Iveda Solutions, the company which monitors the security cameras, called the police and several minutes later two individuals throwing items over a wall were recorded by the security cameras. A Barlow employee who was familiar with the items kept in the yard testified that three of the items being thrown over the wall in the security footage appeared to be a radiator, a box of cords containing copper, and a small cooler. He further testified that on the day after the security footage was taken, he discovered that a radiator and box of cords were missing from Barlow's yard. The employee also testified that no one had permission to be in Barlow's yard that night.
¶5 At 12:47 a.m., Officer Lopez was dispatched to the area for a reported burglary in progress. When Lopez arrived and approached the fenced yard, he spotted Almaraz walking inside the yard. Almaraz began running and then jumped over a wall to exit the yard. Officer Lopez ran after Almaraz, who surrendered after a brief chase. After searching and handcuffing Almaraz, Officer Lopez asked him what he was doing, and Almaraz responded that he was trying to get some water. Lopez later identified Almaraz as one of the individuals throwing items over the wall in the photos taken from the security footage.
¶6 A jury found Almaraz guilty of burglary in the third degree and the lesser-included offense criminal trespass. The court sentenced Almaraz to the presumptive prison term of ten years' imprisonment for the burglary conviction,  and was credited with 59 days of presentence incarceration. Almaraz filed a timely notice of appeal and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033.
¶7 In his supplemental brief, Almaraz argues that (1) he was improperly convicted of both burglary and the lesser-included offense of criminal trespass; (2) several jurors were improperly removed because of their race; (3) one of the State's witnesses should not have been allowed to testify; and (4) his motion for a judgment of acquittal should have been granted.
¶8 The jury found Almaraz guilty of both burglary in the third degree and the lesser-included offense of criminal trespass. After the verdict was read, the trial court suggested that the lesser offense could be dismissed at the time of sentencing. At the sentencing hearing, although the criminal trespass issue was not addressed, Almaraz was sentenced only for the burglary charge. Because a defendant cannot be convicted "on two counts based on a single, definite act, the remedy is to remove the lesser sentence." See State v. Jones, 185 Ariz. 403, 407-08, 9 ...