State v. Hernandez-Pena

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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. ) ) MIGUEL HERNANDEZ-PENA, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 12/16/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL No. 1 CA-CR 09-0974 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-006263-001 DT The Honorable Pamela D. Svoboda, Judge Pro Tempore AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Peg M. Green, Deputy Public Defender Attorneys for Appellant Phoenix B R O W N, Judge ¶1 Miguel Hernandez-Pena ( Defendant ) appeals his convictions and sentences for two counts of aggravated driving under the influence and one count of unlawful flight from law enforcement. Counsel for Defendant 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). Finding no arguable issues to raise, counsel requests that this court search the record for fundamental error. Defendant was granted the opportunity to file a supplemental brief in propria persona, but he has not done so. ¶2 Our obligation in this appeal is to 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 Defendant. See State Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). v. Finding no reversible error, we affirm. ¶3 Defendant was charged with two counts of driving under the influence, both class 4 felonies, in violation of Arizona Revised Statutes ( A.R.S. ) section 28-1383(A)(1)-(2) 1 (Supp. 2010), unlawful discharge of a firearm, a class 6 felony in violation of A.R.S. § 13-3107 (2010), unlawful use of means of transportation, a class 5 felony in violation of A.R.S. § 131803 (2010), and unlawful flight from law enforcement, a class 5 1 We cite to the current versions of the statutes when no changes material to our decision have since occurred. 2 felony in violation of A.R.S. § 28-3315 (Supp. 2010) and A.R.S. § 28-622.01 (2004). The following evidence was presented at trial. ¶4 At Officer approximately Ruiz and a 8:00 p.m. ride-along on November passenger were 15, 2008, traveling southbound on 27th Avenue in a fully marked police vehicle. As they passed a four-door truck that was headed northbound, Ruiz and the passenger heard several gunshots come from the truck. Ruiz made a quick U-turn and pursued the truck by accelerating above the speed limit. 2 Adams, an unmarked He observed the truck turn left on West road in a residential neighborhood. The truck passed several moving vehicles on the left, which put the truck in the path of oncoming traffic. The ride-along passenger observed that the truck accelerated after Ruiz made the U-turn and that they followed the truck at a very high rate of speed through a residential neighborhood. According to Ruiz, he never lost sight of the truck during the pursuit. ¶5 After approximately three minutes of pursuit, truck stopped at a bakery near 30th Avenue and Van Buren. the Ruiz saw a person, later identified as Defendant, exit the truck from the driver s door and walk into the bakery, close the door, and 2 Ruiz testified that he activated his overhead lights during the pursuit but could not recall activating his siren because of the other tasks he was focusing on at the time. He noted, however, that turning on the siren would be standard procedure. 3 turn off the lights inside the building. Two other individuals exited the vehicle, one from the driver s side passenger door and the other from the other side of the truck. complied with Ruiz s commands. Both of them After several backup units had arrived, Defendant exited the bakery and was immediately taken into custody. Ruiz detected an odor of alcohol and transported Defendant to a DUI processing van. After being read the Miranda 3 warning, Defendant admitted he had a couple beers . . . five hours ago, but denied driving the truck, stating he had been inside the business the whole time. He further stated that he did not know who owned the truck, even though his mother was the registered owner. ¶6 Defendant testified that he had consumed some alcohol while target shooting with friends in the north Phoenix area. When the group returned to Phoenix, his cousin B.H. drove him to his family s bakery so he could close up for the evening. friend J.C. was at the bakery waiting for them. His While inside the bakery, Defendant saw Officer Ruiz telling B.H. and J.C. to hold their hands up, but did not go outside, instead continuing to close the bakery. After finishing his work tasks, he saw Ruiz shining a light into the bakery and telling him to come out. 3 He complied and was taken into custody. Miranda v. Arizona, 384 U.S. 364 (1966). 4 ¶7 Defendant stipulated registered at .093 and .096. that his blood alcohol content He also admitted that his license was suspended at the time, but he denied driving the truck. When asked why he did not come out when he saw the police take his friends into custody, he explained drinking and police, they just don t mix. ¶8 At the close of the State s case, the court granted the defense motion for a directed verdict on count 4, unlawful use of means of transportation. of both flight counts from of law aggravated The jury found Defendant guilty DUI enforcement, discharge of a firearm. and but one not count of of guilty unlawful unlawful Defendant was sentenced to five months imprisonment and four years of probation for counts 1 and 2, and three years of probation on count 5. This timely appeal followed. ¶9 We have searched error and find none. the entire record for reversible All of the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. The record shows Defendant was present and represented by counsel at all pertinent stages of the proceedings, was afforded the opportunity to speak before sentencing, and the sentence was imposed within statutory limits. Defendant s convictions and sentences. 5 Accordingly, we affirm ¶10 Upon the filing of this decision, counsel shall inform Defendant of the status of the appeal and his options. Defense counsel has no further obligations unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ _________________________________ DIANE M. JOHNSEN, Presiding Judge /s/ _________________________________ JOHN C. GEMMILL, Judge 6

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