STATE v. SERNAS

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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. ALEX ANDREW SERNAS, Appellant. 1 CA-CR 11-0211 DIVISION ONE FILED: 06/19/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. P1300CR201000207 The Honorable Cele Hancock, Judge AFFIRMED Thomas C. Horne, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Angela Corinne Kebric, Assistant Attorney General Attorneys for Appellee Law Office of Nicole Farnum By Nicole T. Farnum Attorneys for Appellant Phoenix H A L L, Judge ¶1 Defendant convictions offenses: and Alex sentences transportation Andrew for for Sernas two sale appeals from his methamphetamine-related and possession of paraphernalia. Defendant argues that the drug and paraphernalia evidence should not have been admitted at trial because the warrantless evidence police violated search the that led Fourth to the discovery Amendment. He also of the raises arguments related to the court s reliance on his prior felony convictions and other aggravating circumstances for sentencing purposes. Finally, instructions to the defendant jury. challenges For the the reasons court s that final follow, we affirm. BACKGROUND The evidence at trial revealed the following.1 ¶2 Based on information from a material informant (MI) and a subsequent investigation, Yavapai County Sheriff s officers learned defendant was going to sell methamphetamine to the MI at the Sunset Point rest area located on Interstate 17 north of Black Canyon City. Officers confronted defendant and the driver of the truck in which defendant was a passenger at the rest stop late in the evening of February 10, 2010. search of defendant revealed two baggies A warrantless strip of methamphetamine weighing a total of 11.8 grams in his sock. 1 We view the evidence in the light most favorable to sustaining the convictions and resolve all reasonable inferences against defendant. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005). 2 ¶3 The state charged defendant with one count each of transportation of a dangerous drug for sale, a class 2 felony, and possession Defendant moved of drug paraphernalia, pre-trial to suppress a class evidence 6 of felony. the drugs arguing the warrantless search violated his rights under the Fourth Amendment. denied The court held an evidentiary hearing and defendant s inevitable motion. discovery The exception court to the reasoned warrant that the requirement applied because law enforcement would have found the drugs when defendant was booked into jail after his arrest. Paxton, 186 Ariz. 580, 584, 925 P.2d 721, See State v. 725 (App. 1996) ( Evidence obtained in violation of the Fourth Amendment need not be suppressed when that evidence would inevitably have been discovered by lawful means. ). ¶4 Defendant stipulated to the factual bases of the charged offenses elements and raised entrapment as his defense at trial. The jury found defendant guilty as charged, and, for sentencing purposes, the court found defendant had two prior felony convictions in addition to other aggravating factors as charged by the state. concurrent terms of The court imposed slightly aggravated twenty years imprisonment for the transportation of a dangerous drug for sale conviction and four years for the possession of drug paraphernalia conviction. Defendant appealed, and we have jurisdiction pursuant to Article 3 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031 and 4033(A)(1) (2010). DISCUSSION I. Fourth Amendment ¶5 Defendant first argues the court erred in denying his motion to suppress. arrest when the methamphetamine; Specifically, he contends he was not under police searched consequently, the him and police discovered would not the have inevitably found the packages at the jail because [defendant] would not premise have that searched. he been was booked. not We under disagree arrest at with the defendant s time he was Without deciding whether the trial court s reasoning was correct, we conclude the search was conducted incident to defendant s arrest and therefore was exempted from the Fourth Amendment s warrant requirement. See State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) ( The fact that the trial judge came to the proper conclusion for the wrong reason is irrelevant. We are obliged to affirm the trial court s ruling if the result was legally correct for any reason. ). ¶6 In reviewing the denial of a motion to suppress, we review only the evidence submitted at the suppression hearing, and we view those facts in the upholding the trial court s ruling. 4 manner most favorable to State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996); State v. Box, 205 Ariz. 492, 493, ¶ 2, 73 P.3d 623, 624 (App. 2003). Although we defer to the trial court s factual determinations, we review de novo its ultimate legal conclusion. 73 P.3d at 626. should error. not be Box, 205 Ariz. at 495, ¶ 7, A trial court s ruling on a motion to suppress reversed on appeal absent clear and manifest State v. Gulbrandson, 184 Ariz. 46, 57, 906 P.2d 579, 590 (1995). ¶7 The Fourth Amendment protects people from unreasonable searches and seizures. 137 (1978). Scott v. United States, 436 U.S. 128, Generally, a warrantless unreasonable under the Fourth Amendment. search is per se State v. Branham, 191 Ariz. 94, 95, 952 P.2d 332, 333 (App. 1997) (citing State v. Castaneda, 150 Ariz. 382, 389, 724 P.2d 1, 8 (1986)). However, such searches of an arrestee are generally upheld if conducted incident to a valid arrest. See Davis v. United States, ___ U.S. ___, 131 S. Ct. 2419 (2011). ¶8 someone A police whom the officer officer committed a felony. may, has without probable a cause warrant, to arrest believe has A.R.S. § 13-3883(A)(1) (Supp. 2011); State v. Keener, 206 Ariz. 29, 32, ¶ 15, 75 P.3d 119, 122 (App. 2003). Probable cause exists when reasonably trustworthy information and circumstance[s] would lead a person of reasonable caution to believe that a suspect has committed 5 an offense. State v. Hoskins, (2000), (2003). 199 Ariz. opinion 127, 137-38, supplemented by ¶ 204 30, 14 P.3d 997, Ariz. 572, 65 1007-08 P.3d 953 Further, whether probable cause exists depends on all of the facts and circumstances known at the time of the arrest. Keener, 206 Ariz. at 32, ¶ 15, 75 P.3d at 122. ¶9 [A]n arrest is complete when the suspect s liberty of movement is interrupted and restricted by the police[.] State v. Ault, 150 Ariz. 459, 464, 724 P.2d 545, 550 (1986), (quoting State v. Winegar, 147 Ariz. 440, 447-48, 711 P.2d 579, 586-87 (1985) and State v. Leslie, 147 Ariz. 38, 43, 708 P.2d 719, 724 (1985)). Similar to determining the existence of probable cause to an make arrest, whether an arrest has been effectuated depends upon an evaluation of all the surrounding circumstances to determine whether a reasonable man innocent of any crime would have thought he was being arrested if he had been in defendant s shoes. Ault, 150 Ariz. at 464, 724 P.2d at 550. Important factors to consider in such an evaluation include the extent to which freedom of movement is restricted, the amount and character of the force used, and the display of official authority. ¶10 Id. With these principles in mind, we conclude that the evidence at the suppression hearing clearly indicates defendant was under valid arrest at the time he was searched, and therefore, the drug evidence was admissible under the search- 6 incident-to-arrest exception to the Fourth Amendment s warrant requirement. ¶11 At the hearing, Detective Direen from the Yavapai County Sheriff s Office testified that he received a call on February 10, 2010, from the MI whom he had previously relied upon in successful drug investigations. The MI stated she could procure in Yavapai County a large amount of methamphetamine from defendant, who lived in Avondale and had previously provided her with methamphetamine. The MI knew where defendant lived and provided Direen with defendant s general physical description. ¶12 Direen drove with the MI to conduct surveillance at defendant s residence while she negotiated transaction with defendant by cell phone. details of the During one of those phone calls while outside defendant s home, defendant told the MI that he was going to his neighbor s house to seek a ride to Sunset Point, the agreed-upon location for the transaction to take place.2 As this conversation transpired, Direen observed defendant walk to his neighbor s home. ¶13 Eventually, Direen and the MI saw defendant get into a pickup truck with another individual who was driving. Direen and other officers involved in the surveillance followed the truck, which began to employ very obvious driving maneuvers to 2 Defendant apparently agreed to deliver the drugs to Sunset Point because the MI s personal vehicle was mechanically unreliable. 7 ensure no one was following.3 Direen ceased following the truck and ordered the surveillance team to proceed to Sunset Point. ¶14 Direen and the team arrived at the rest area before defendant. When defendant arrived, officers positioned their vehicles block to in the truck where it parked. Direen, wearing a ballistic vest with SHERIFF emblazoned across the chest, proceeded to the front of the truck, drew his gun, and ordered defendant and the truck s driver out of the vehicle. Other officers also had their weapons drawn. Defendant did not comply and had to be dragged out of the truck. to the suspects investigation. he was detaining them Direen explained for a narcotics A canine unit conducted an exterior sniff of the truck and alerted officers to the driver side. A pat-down of the suspects was conducted and revealed only a methamphetamine pipe in the driver s pocket. Police then searched the truck and found no methamphetamine, but they did discover in the truck s glove box a digital scale commonly used during drug sales. scale had residue on it. had concealed partner led Believing the driver or defendant methamphetamine defendant, who on themselves, Direen was handcuffed, to restroom to conduct a strip search. searched. 3 The the and his public Defendant begged not to be Direen discovered the two bindles of methamphetamine Direen described these maneuvers as heat runs. 8 in defendant s sock, whereupon defendant was formally placed under arrest and placed in a patrol car. ¶15 Despite defendant s argument to the contrary, we conclude the circumstances prior to his strip search constituted probable cause to arrest him for narcotics offenses, and that he was under arrest prior to the search. The factors supporting probable cause include the information Direen received from the MI and during the surveillance regarding defendant s agreement to sell the methamphetamine, the heat runs conducted by the truck, the dog sniff, the pipe found on the driver, and the scale and its residue found in the glove box. These factors, in conjunction with the lack of drugs found in the vehicle, support a reasonable belief that defendant was possessing on his person methamphetamine for sale at the time he was searched. Furthermore, based on the presence of multiple police officers with drawn weapons at the rest area and the fact that defendant was handcuffed no reasonable person would have felt free to leave the scene once Direen and the other law enforcement personnel made contact with defendant. ¶16 and As a result, defendant was under valid arrest before during search the incident search. to Consequently, defendant s arrest, Direen conducted the thereby rendering the warrantless search permissible under the Fourth Amendment. See Chimel v. California, 395 U.S. 752, 762-63 (1969) (describing 9 the search incident to arrest principle, in part: When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to . . . search for and seize any evidence on the arrestee s person in order to prevent its concealment or destruction. ). The court did not err in denying defendant s motion to suppress. II. ¶17 Fundamental Error Defendant review for raises fundamental three issues error. that To he obtain concedes relief we under fundamental error review, defendant has the burden to show that error occurred, the prejudiced thereby. error was fundamental and that he was See State v. Henderson, 210 Ariz. 561, 567- 68, ¶¶ 20-22, 115 P.3d 601, 607-08 (2005). Fundamental error is error that goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial. 24, 115 P.3d at 608. The showing Id. at 568, ¶ required to establish prejudice differs from case to case. Id. at ¶ 26. A defendant must show that a reasonable jury, applying the appropriate standard of proof, could have reached a different result. Id. at 569, ¶ 27, 115 P.3d at 609. A. ¶18 Waiver of Trial on Prior Convictions Defendant contends the trial court impermissibly imposed enhanced sentences based on his two historical prior 10 felony convictions. defendant was convictions: suspended, assault Prior to trial, the state alleged that convicted driving 1992, the under the revoked canceled, in of or possession of following influence refused while in marijuana prior license 1987, in felony was aggravated 1992, resisting officer/arrest in 1998, possession of marijuana in 1999, forgery in 2000, and aggravated assault of a minor and possession of dangerous specify drugs which in 2005. two of Although defendant s the trial court historical did prior not felony convictions it was using to enhance his sentence, the record reflects that the defendant s prior convictions in state submitted convictions 2005) certified (including along with his two extensive copies most of recent supporting documentation. ¶19 Defendant argues a remand is necessary for resentencing because the court found the existence of the priors based solely on defense counsel s stipulation without addressing defendant directly to determine whether his waiver of a trial on the priors was voluntary. See Ariz. R. Crim. P. 17; State v. Carter, 216 Ariz. 286, 289, ¶ 15, 165 P.3d 687, 690 (App. 2007) ( a superior court may not accept defense counsel s stipulation to a prior conviction without following the procedures in Rule 17 ). Although the record appears to support defendant s contention that the trial court did not engage in the requisite 11 Rule 17 colloquy directly with defendant, he cannot prove the prejudice necessary for remand because the record documentary evidence of his prior convictions. contains See State v. Morales, 215 Ariz. 59, 62, ¶¶ 11-14, 157 P.3d 479, 482 (2007). Accordingly, we find no reversible error. B. ¶20 Trial on Aggravators Defendant contends the trial court erred at sentencing when it, instead of the jury, found aggravating circumstances in addition to the prior convictions. The additional aggravating circumstances found by the court were presence of an accomplice and defendant s commission of the crimes in the expectation of the receipt of anything of pecuniary value. ¶21 Defendant s claim lacks any merit. Once the trial court found as an aggravating circumstance that defendant was previously convicted of a felony within ten years preceding the date of the current offense, see A.R.S. § 13-701(C)(11) (2010), it was then permitted to aggravating circumstances. consider and find other alleged See State v. Martinez, 210 Ariz. 578, 584, ¶ 21, 115 P.3d 618, 624 (2005). C. ¶22 Jury Instruction on Stipulation Finally, defendant argues the court fundamentally erred in not instructing the jurors that defendant s stipulation to the elements of the charged offenses was not binding on them[.] 12 ¶23 We discern no error. requiring such an Defendant points to no authority instruction. His reliance on State v. Carreon, 210 Ariz. 54, 107 P.3d 900, opinion supplemented by, 211 Ariz. 32, 116 P.3d 1192 (2005), is misplaced. In that case, the Arizona Supreme Court determined the trial court should not have instructed the jury that the stipulation satisfied state's burden of proving an element of the crime. ¶ 47, 107 P.3d at 910. the Id. at 64, Here, the court did not instruct the jury that defendant s stipulation satisfied the state s burden of proof. Indeed, the court properly instructed on the state s burden and the presumption of innocence. ¶24 Finally, even if the court s failure to instruct the jury that it could disregard defendant s stipulation was error, it was not fundamental error. Defendant further failed to meet his burden to establish prejudice because the trial evidence, aside from the stipulation, overwhelmingly defendant s guilt on the charged offenses. 13 established CONCLUSION ¶25 Defendant s convictions and sentences are affirmed. _/s/______________________________ PHILIP HALL, Judge CONCURRING: _/s/___________________________________ PATRICIA A. OROZCO, Presiding Judge _/s/___________________________________ JOHN C. GEMMILL, Judge 14

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