State v. Farinas

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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. JOHN FARINAS, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 01/12/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0531 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-161461-005DT The Honorable Sam J. Myers, Judge AFFIRMED ________________________________________________________________ Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Eaton Law Office Phoenix By Pamela J. Eaton Attorneys for Appellant ________________________________________________________________ G E M M I L L, Judge ¶1 sentences John Farinas for assisting appeals a from criminal his convictions syndicate and and promoting prison contraband. Farinas 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 that this court examine the record for reversible error. Farinas was afforded an opportunity to file supplemental brief in propria persona but did not do so. a See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). 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 In October 2008, Farinas was indicted on one count of assisting a criminal syndicate, a class 4 felony, and one count of conspiracy to promote prison contraband, a class 2 felony. In February 2010 Farinas was indicted on one count of promoting prison contraband, a class 5 felony. The three counts were consolidated in April 2010. ¶4 An eight-day jury trial commenced in April 2010. The State alleged that on or between January 1, 2008 and June 30, 2008, Farinas, considered to be a member of the Mexican Mafia by the Department of Corrections, conspired to smuggle contraband 2 into a secure facility for the benefit of the Mexican Mafia. The State also alleged that in early August 2008 Farinas knowingly made, obtained, or possessed contraband, a handcuff key, while confined in the Maricopa County Jail. The following evidence was presented at Farinas trial. ¶5 From early to mid 2008, Farinas was incarcerated at the Fourth Avenue Jail ( Jail ) in the Special Management Unit ( SMU ). Each inmate in the SMU was isolated to his own cell, had access to only one day room, and only one person was allowed access to the recreation room at a time. Farinas was housed in level four at the SMU in cell number 66. ¶6 Farinas was known as a lieutenant in the Mexican Mafia and was nicknamed Sinner . the City of investigate Phoenix prison Detective D., a police officer with formerly gangs, assigned to specifically a the task force Mexican to Mafia, identified Farinas in court and testified that the tattoos on Farinas chest Carnalismo, were which of are the Mexican both known Mafia to be patch and associated of with membership in the Mexican Mafia. ¶7 Montiel Joseph were Garcia, housed in also cells known 64 as and Casper, 65, the and cells Farinas, and had access to the same recreation room. also known members of the Mexican Mafia. Juanilo next to Both were Detective D. testified that in August 2008, the cells of Farinas, Garcia, Montiel, and 3 Jesse Alejandro were searched at the Jail. letters about Mexican Mafia business, He confirmed that items belonging to Farinas, and letters to Farinas were found in Garcia s cell. The items found in Garcia s cell confirmed to Detective D. that there was a direct connection between Farinas and Garcia in relation to both the Mexican Mafia and in being able to get items from Farinas cell into Garcia s cell, which according to Detective D. was proof a criminal syndicate was being run within the confines of the Jail. ¶8 A video of Montiel and Garcia was presented at trial showing the two inmates passing objects to each other between their cells. Detective D. testified that the video of Montiel and Garcia passing objects to each other between their cells was further evidence of the conspiracy involving Farinas because it proved the ability of inmates to pass letters and objects from cell to cell, which allowed them to communicate and deliver messages regarding Mexican Mafia business. ¶9 In the search of Farinas cell in August 2008, a plastic homemade handcuff key, the address of a known Tucson mafia member, gang related letters, and a folder containing paper documents and photographs related to the New Mexican Mafia were found. The homemade handcuff key constituted contraband, which is defined as [a]nything that would threaten the safety or security of the facility including drugs, weapons, CDs, and 4 handcuff keys. ¶10 the Sergeant W. of the Maricopa County Sheriff s office at Fourth Avenue Jail testified as to the visitor jail procedures and to certain inmates visitation logs, including Farinas . lawyers Sergeant W. testified that with proper identification could visit any inmate housed actually representing the inmate. in the Jail without He further testified that legal visitors at the Jail were allowed privileged visits which permitted them to meet with the inmates in their personal day room separated by the cell door rather than through the video visitation system for regular visits. Objects and papers could be passed back and forth between lawyers and inmates through the open slots in the cell door. Legal visits were monitored by camera with video but not audio. ¶11 visited Former Farinas Attorney and Jason others in Keller the and same unit his assistants at the Jail. Sergeant W. testified that between January 2008 and September 2008 Keller signed in to visit Farinas five times, but that unescorted lawyers on in-person privileged visits were able to visit other inmates without the visit being logged. Furthermore, Sergeant W. testified that an attorney can sign in to visit a particular inmate without actually making it to that person s cell. ¶12 Keller provided contraband 5 to Farinas and other inmates during contraband between his visits included Keller Detective D. a and to cell phone. Farinas testified the A was showed Fourth Avenue video of a in presented Keller Jail; court giving the visitation an which object to Farinas. ¶13 The jury found Farinas guilty of all three charges of assisting a criminal syndicate, conspiracy to commit promoting prison contraband, and promoting prison contraband. As to the charge contraband of conspiracy to commit promoting prison ( count 2 ), the jury was not unanimous as to which type of contraband Farinas conspired to promote, but did unanimously find that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang with the intent to promote, further, or assist any criminal conduct by the criminal street gang. The defense requested a mistrial on count 2. After allowing the State to brief the issue, a mistrial ordered was promoting prison as to contraband, count in 2, June conspiracy to commit 2010, the State and subsequently dismissed the count without prejudice. ¶14 of The court sentenced Farinas to an aggravated sentence 12 years incarceration syndicate. imprisonment, credit, The court for with count sentenced 604 1, days of assisting Farinas to an presentence a criminal aggravated sentence of 6 years imprisonment from the date of completion of 6 the sentence in count 1 for his conviction on count 3, promoting prison contraband. ( A.R.S. ) Pursuant 13-701(D)(11) to (Supp. Arizona 2011) 1 Revised the Statutes sentences were aggravated because Farinas had previously been convicted of a felony within the ten years immediately preceding the date of these offenses. ¶15 Farinas pursuant to timely Arizona appealed. Constitution We Article have 6, jurisdiction Section 9, and A.R.S. Sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 134033(A)(1) (2010). DISCUSSION ¶16 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 sentences imposed fall within the ranges permitted by law, and the evidence presented supports the convictions. As far as the record reveals, Farinas 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. ¶17 684 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, P.2d 154, 156-57 (1984), counsel s 1 obligations in this We cite to the current versions of statutes when no revisions material to this decision have occurred since the date of the alleged offense(s). 7 appeal have ended. Counsel need do no more than inform Farinas 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. Farinas has thirty days from the date of this decision in which to proceed, if he desires, with a pro se motion for reconsideration petition for review. CONCLUSION ¶18 The convictions and sentences are affirmed. ____/s/______________________________ JOHN C. GEMMILL, Judge CONCURRING: ____/s/____________________________ LAWRENCE F. WINTHROP, Chief Judge ____/s/____________________________ PHILIP HALL, Judge 8 or

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