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Not for Publication -Rule 111, Rules of the Arizona Supreme Court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 Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section And Linley Wilson, Assistant Attorney General Attorneys for Appellee.
James Haas, Maricopa County Public Defender 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 criminal trespass, which the jury instructions identified as a lesser-included offense. 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 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 Almaraz argues his conviction for criminal trespass should be vacated because it is a lesser-included offense of burglary, for which he was also convicted. We agree that the criminal trespass conviction should be vacated, but for a different reason. Criminal trespass is not a lesser-included offense of burglary. See State v. Malloy, 131 Ariz. 125, 130-31, 639 P.2d 315, 320-21 (1981); State v. Kozan, 146 Ariz. 427, 429, 706 P.2d 753, 755 (App. 1985). Additionally, the indictment does not include any allegation that Almaraz knew his entry or presence in the fenced yard was unlawful. See State v. Ennis, 142 Ariz. 311, 314, 689 P.2d 570, 573 (App. 1984) ("[A] court may inquire as to whether the greater offense, as described by a statute or as charged, can be committed without necessarily committing the lesser offense."). Therefore, the jury should not have been instructed that it could convict Almaraz of criminal trespass.
¶9 Almaraz next alleges that several prospective jurors were excused as part of a "'subterfuge' used by the State to get rid of 'non-whites' from the panel." The Equal Protection Clause prohibits discrimination in jury selection on the basis of race. Batson v. Kentucky, 476 U.S. 79 (1986) . Defense counsel did not object to the removal of any of the prospective jurors who Almaraz now claims were excused inappropriately. By failing to timely object to the composition of the jury in the trial court, Almaraz has waived any error. See State v. Garza, 216 Ariz. 56, 65, ¶ 31, 163 P.3d 1006, 1015 (2007) . Almaraz also suggests that his counsel should have objected to the removal of these jurors. A claim of ...