Appeal
from the Superior Court in Maricopa County No.
CR2014-156118-001 The Honorable M. Scott McCoy, Judge.
Arizona Attorney General's Office, Phoenix By Linley
Wilson Counsel for Appellee
Rick
Poster, Phoenix Counsel for Appellant
Judge
Jennifer M. Perkins delivered the opinion of the Court, in
which Presiding Judge Diane M. Johnsen and Judge Kent E.
Cattani joined.
OPINION
PERKINS, Judge.
¶1
Victor Ted Hernandez appeals his convictions and sentences
for three counts of participating in a criminal street gang
in violation of Arizona Revised Statutes ("A.R.S.")
§ 13-2321(A). The State charged Hernandez after law
enforcement intercepted two letters he wrote from prison to
members of a criminal street gang. The letters' contents
support his conviction under § 13-2321(A)(1). Because
the letters never reached their intended recipients, however,
Hernandez could be convicted only of attempted offenses under
§ 13-2321(A)(2) and (3). Accordingly, we affirm his
conviction and sentence as to the first count, but vacate his
other convictions, modify the judgment as to those
convictions, and remand for resentencing.
FACTUAL
AND PROCEDURAL BACKGROUND
¶2
We view the facts in the light most favorable to sustaining
the convictions. State v. Harm, 236 Ariz. 402, 404,
¶ 3 n.2 (App. 2015). Evidence at trial established the
following: While Hernandez was incarcerated in the Special
Management Unit of the Fourth Avenue Jail, his incoming and
outgoing mail was subject to an order that required a
corrections officer to scan each piece of mail before it
could be sent to the post office or delivered to Hernandez.
Hernandez attempted to mail two envelopes labeled "legal
mail," one addressed to "Villa" and the other
to "Lopez," but a Sheriffs Officer recognized the
addressees as recipients of nonlegal mail Hernandez had
previously sent. After receiving approval from his
supervisor, the officer opened and inspected the envelopes.
¶3
The Villa envelope contained a handwritten letter and a copy
of a disciplinary action report detailing an assault on an
inmate suspected of cooperating with law enforcement against
the Mexican Mafia street gang. The handwritten letter gave
instructions to provide Hernandez's contact information
to other suspected gang members housed in Fourth Avenue Jail.
It was signed "Gucci Boy," one of Hernandez's
known aliases.
¶4
The Lopez envelope contained a filing from Hernandez's
other legal proceedings interlineated with detailed
handwritten instructions to send a message to
"Turtle" that the Mexican Mafia controls the drug
trade. The letter was signed "Death row Lil Chico,"
another of Hernandez's known aliases. The writing further
gave instructions to collect $5, 000-$10, 000 in back
"taxes" from Turtle, and if Turtle refused to pay,
to burn down a particular business, and then if Turtle still
refused to pay, to burn down another business at a second
location. The letter also contained instructions to set up an
outside address for money transfers, as well as detailed
plans to commit robberies, setting forth the necessary
weapons and other equipment, and advising it would be easier
to "take out" the intended victims than to leave
them alive.
¶5
Based on the two letters, the State charged Hernandez with
three counts of participating in a criminal street gang, each
a class 2 felony. During his five-day trial, the State
presented testimony from multiple law enforcement officers
showing Hernandez's affiliation with the Mexican Mafia,
testimony from Officer Verdin that Hernandez had written the
letters, and the actual letters themselves. The jury found
Hernandez guilty on each count and then found two aggravating
factors - Hernandez committed the offenses as consideration
for something of pecuniary value and that he committed the
offenses with the intent to promote or assist criminal
conduct by a criminal street gang. The court sentenced
Hernandez to twelve years of imprisonment for each count, to
be served concurrently, and an additional five years to be
served consecutively to the twelve-year terms as a gang
enhancement.
¶6
After searching the entire record, Hernandez's defense
counsel identified no arguable, non-frivolous questions of
law. In accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), defense counsel requested we search the record for
fundamental error. Hernandez was given an opportunity to file
a supplemental brief in propria persona, but did not
do so. In the course of our Anders review, we
identified an issue arguably constituting fundamental error
and ordered the parties to submit supplemental briefs.
See Penson v. Ohio, 488 U.S. 75, 83-84 (1988)
(requiring representation when Anders review
discloses an arguable issue). We asked the parties to address
whether the fact that the mail at issue was intercepted
requires modification of the judgment to reflect convictions
for attempted participation in a criminal street gang rather
than completed offenses. We also heard oral argument on the
issue.
DISCUSSION
¶7
Hernandez argues that the interception of the letters before
they reached their recipients precludes his convictions for
participating in a criminal street gang. Specifically,
Hernandez argues the language of ยง 13-2321(A) requires
completed communication between a defendant and the intended
recipient of the communication. We agree, and reverse two of
Hernandez's convictions but ...