State v. Heredia

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. LAWRENCE MARTIN HEREDIA, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 12/10/09 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 09-0055 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR200701671 The Honorable Andrew W. Gould, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals Section Attorney for Appellee Yuma County Public Defender By Sara Xochitl Orozco, Deputy Public Defender Attorneys for Appellant Phoenix Yuma G E M M I L L, Judge ¶1 Lawrence Martin Heredia ( Heredia ) appeals from his conviction and sentence for possession of dangerous drugs, a class four felony. Heredia s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that she has searched the record and found no arguable question of law and requesting reversible error. Heredia was that this court examine the record for See Smith v. Robbins, 528 U.S. 259 (2000). afforded the opportunity to file brief in propria persona but did not do so. a supplemental For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 therefrom We view the in the light convictions. facts and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶3 On December 18, 2007, law enforcement officers served a search warrant on a house in Yuma, Arizona. The purpose of the warrant was to search for indicia of methamphetamine sales. Prior to serving the search warrant, the officers were provided with the identity and photograph of X.R., the individual who was residing at the house and who was the subject of the search. ¶4 The officers arrived at the house at approximately two o clock in the afternoon. but nobody answered. They knocked on the door of the house The officers then entered the house and determined that no one was inside. 2 ¶5 After it was determined that there was no one inside the house, Officer C.O. returned to his unmarked police vehicle parked outside the house to take off his ballistic vest. Officer C.O. was in his vehicle, traveling north towards him. truck as X.R. he noticed a green As truck He recognized the driver of the Officer C.O. also observed a passenger and a dog inside the truck. The truck, however, did not stop at the house and continued past Officer C.O. ¶6 Officer C.O. followed the green truck in his unmarked vehicle. He radioed one of the other officers assisting in the search at the house and driven by the house. informed the officer that X.R. had Officer C.O. continued to follow behind the green truck at a car length distance. ¶7 A short time later, the green truck came to a stop in the middle of the road. Main Canal. The road was located next to the East Officer C.O. stopped his vehicle directly behind the green truck and activated the vehicle s police lights. The passenger of the truck, whom Officer C.O identified as Heredia, exited the truck and threw a small black pouch into the canal. Heredia then started to run away. Officer C.O. chased after Heredia and identified himself as a police officer by saying Police, Stop. ¶8 running Heredia, however, did not stop running. Officer C.O. was able to catch up to Heredia after approximately one hundred 3 feet. Once he reached Heredia, he pushed Heredia to the ground. Less than a minute later, other police officers arrived at the scene to assist Officer C.O. with Heredia. C.O. went over to the Once assistance arrived, Officer canal and retrieved the black Inside the pouch, Officer C.O. found plastic baggies. pouch. Two of the baggies contained a white crystal substance that Officer C.O believed to be methamphetamine. ¶9 Later, the white positive for methamphetamine. substance in the baggies tested The amount of methamphetamine in the baggies was determined to be approximately 3.67 grams, a quantity.1 usable Heredia was indicted on one count of possession of dangerous drugs for sale, a class two felony, and one count of possession of drug paraphernalia, a class six felony. ¶10 After a trial by a jury, Heredia was found not guilty of possession of dangerous drugs for sale and not guilty of possession of drug paraphernalia. Heredia was, however, found guilty of possession of dangerous drugs, a class four felony and a lesser included offense for possession of dangerous drugs for sale. The court suspended imposition of sentence and placed Heredia on probation for three years. 1 The at the one of six or police officers performing the search weighed the baggies house using a scale found inside the house. According to the officers, the total weight of the baggies was about seven grams. 4 ¶11 We Heredia timely appeals his conviction and sentence. have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2001), 134033(A)(3) (Supp.2008), and Article 6, Section 9, of the Arizona Constitution. DISCUSSION ¶12 Having considered defense counsel s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. The sentence imposed falls within the range permitted by law, and the evidence presented supports the conviction. As far as the record reveals, Heredia was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶13 684 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform Heredia of the disposition of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. Heredia has thirty days from the date of this decision in which to proceed, if he desires, with a pro se petition for review. 5 motion for reconsideration or CONCLUSION ¶14 The conviction and sentence are affirmed. ____/s/______________________ JOHN C. GEMMILL, Judge CONCURRING: _____/s/_________________________ PETER B. SWANN, Presiding Judge _____/s/_________________________ DIANE M. JOHNSEN, Judge 6

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