State v. Bahena

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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. JOSE AUGUSTO BAHENA, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 10-0036 DIVISION ONE FILED: 08/31/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-138948-002DT The Honorable Edward O. Burke, Judge 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 Thomas Baird, Deputy Public Defender Attorneys for Appellant Phoenix B A R K E R, Judge ¶1 Jose Augusto Bahena appeals from his conviction and sentence for one count of burglary in the third degree, a class four felony. Bahena s counsel 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), advising this court that after searching the entire record arguable ground for reversal. on appeal, he finds no We granted Bahena leave to file a supplemental brief in propria persona on or before August 16, 2010, but he did not do so. record for reversible error. We are required to search the Finding no such error, we affirm. Facts and Procedural Background 1 ¶2 In the early morning of June 11, 2009, responded to a call about a burglary in progress. police They were called to Reyna Michoacana, a general store that sold ice cream and popsicles, handbags and cell-phones, and had coin-operated games. Officers arrived and found Bahena sitting in the driver s seat of a car parked on the street in front of the store. When asked what he was doing, Bahena told the officers he was waiting for a friend who was in the park across the street. ¶3 Bahena was detained while officers entered the store. The store appeared to have been ransacked: kitchen utensils were on the floor, the freezer door was ajar, the coin- 1 We view the facts in the light most favorable to sustaining the court s judgment and resolve all inferences against Bahena. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998); State v. Moore, 183 Ariz. 183, 186, 901 P.2d 1213, 1216 (App. 1995). 2 operated games were broken-into, and there was a hole in the ceiling. Once inside the store, officers saw two individuals carrying television sets. Upon seeing the officers, one individual dropped the television set he was carrying, the other set his down, and both put their hands up. Officers detained both individuals. ¶4 After the officers searched the individuals, they found fifteen quarters, a cordless handset to a phone, and a screwdriver. Officers quarters in his pocket. contained a display searched Bahena and found forty-seven The car in which Bahena was sitting rack of tortilla chips in the front passenger seat and a number of women s purses in the back seat. After an officer read Bahena his Miranda rights, Bahena told the officer that he was stealing because it was a bad economy. Bahena was indicted and charged with one count of burglary in the third degree, a class four felony. ¶5 found At trial, sitting in Bahena the car. was identified The owner of as the individual Reyna Michoacana testified that the chip rack, the chips, and the purses found in the car with Bahena were from the burglarized store. The jury found Bahena guilty of burglary in the third degree, and the jury separately found the aggravating circumstance that Bahena had committed the offense in the expectation of pecuniary gain. 3 ¶6 At sentencing, the court gave Bahena an opportunity to speak. Pursuant to the recommendation of the presentence report, the court suspended imposition of sentence and placed Bahena on supervised probation for eighteen months. Bahena timely appealed, and we have jurisdiction pursuant to Article 6, Section 9, Statutes of the sections Arizona Constitution 12-120.21(A)(1) (2003), and Arizona 13-4031 Revised (2010), and 13-4033(A) (2010). Disposition ¶7 At trial, the State presented evidence of Bahena s statements to the officer. Although no hearing was held to determine of the voluntariness Bahena s statements to the officer, Bahena neither requested a voluntariness hearing nor objected to the evidence at trial. There was no evidence that the statements were involuntary, and the defense never requested a voluntariness hearing. See State v. Alvarado, 121 Ariz. 485, 487, 591 P.2d 973, 975 (1979) ( [I]t is the defendant who must move for a voluntariness hearing . . voluntariness hearing was not required. . . ). Therefore, a See State v. Peats, 106 Ariz. 254, 257, 475 P.2d 238, 241 (1970). ¶8 We have reviewed the entirety of the record and found no meritorious grounds for reversal of Bahena s conviction or for modification of the sentence imposed. See Anders, 386 U.S. at 744; Leon, 104 Ariz. at 300, 451 P.2d at 881. 4 After the filing of this decision, counsel s obligations in this appeal have ended. appropriate Unless for counsel s submission to review the Arizona reveals an Supreme issue Court by petition for review, counsel need do no more than inform Bahena of the status of the appeal and Bahena s future options. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Bahena has proceed, if thirty he days from desires, the with date a of pro this decision per motion to for reconsideration or petition for review. /s/ _____________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ ___________________________________ LAWRENCE F. WINTHROP, Judge 5

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