State v. Nine

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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 MAGDALENO NINE, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 10-0084 DIVISION ONE FILED: 12/28/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009135592-001 DT The Honorable Carolyn K. Passamonte, 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 Christopher V. Johns, Deputy Public Defender Attorneys for Appellant Phoenix B A R K E R, Judge ¶1 Jose Magdaleno Nine appeals from his conviction and sentence for unlawful flight from a law enforcement vehicle, a class five felony. Nine was sentenced on January 8, 2010, and timely filed a notice of appeal on January 28, 2010. Nine 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 on appeal, he finds no arguable ground for reversal. Nine was granted leave to file a supplemental brief in propria persona on or before December 6, 2010 but did not do so. ¶2 of We have jurisdiction pursuant to Article 6, Section 9, the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010). reversible error. We are required to search the record for Finding no such error, we affirm. Facts and Procedural Background 1 ¶3 On May 28, 2009, at about 8:30 in the morning, police officer Michael Pacheco was in the area of 7th Avenue and Buckeye in Phoenix when he observed an individual on a blue motorcycle running a commercial inspection red light. vehicle, a 1 Pacheco large police was driving pick-up a truck We review the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Nine. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 equipped with red and blue lights, LEDs, and a siren. When the motorcyclist ran the red light, Pacheco attempted to follow the vehicle to issue a traffic citation. In his attempt to follow the motorcycle, he noticed that his speed was exceeding sixty miles per hour near a residential area. Pacheco activated his lights, not and when the motorcyclist did respond, Pacheco activated his siren. ¶4 When the siren was activated, Pacheco noticed the driver of the motorcycle turning his head in Pacheco s direction and moving into the left median lane. The motorcyclist turned left onto 13th Avenue, and Pacheco could see the driver s face and eyes workers through were his motorcycle working accelerated his bike. on helmet. 13th Even Avenue, though road the motorcyclist Due to the police department s safety policy, Pacheco did not pursue the motorcyclist. The driver glanced back a few blocks down the road and accelerated away from the scene. ¶5 Pacheco advised the police radio operators of the fleeing motorcyclist and gave them the area of the occurrence and a description wearing. He of the described vehicle the bike and as what the a blue operator was racing-style motorcycle with a single exhaust and a somewhat obscured license plate. He noted that the driver was wearing a dull black helmet and a tan shirt. 3 ¶6 Two unrelated other matter police when detectives they were noticed motorcycle a investigating fitting an the description of the one Pacheco had been following parked outside of a convenience store. They noticed a suspect with a tan shirt, who they later identified as Nine. They stopped Nine, and shortly thereafter Pacheco arrived at the store and arrested Nine. After the arrest, Pacheco asked Nine if he knew that he should have stopped for him. 2 ¶7 Nine said that he did. On June 1, 2009, Nine was charged with unlawful flight from a law enforcement vehicle. Nine s case proceeded to trial where he and his counsel were present for all critical stages. Nine testified that he was an eighteen-year-old college student and that he was working two jobs to afford his living expenses. When the incident occurred, he was because he was sick to his stomach. driving home from work He testified that his motorcycle was extremely loud and that his helmet significantly muffled exterior noises. He also told the jury that he could 2 Officer Pacheco s testimony at trial was inconsistent whether he had asked Nine if he had known he should have stopped for him. Pacheco s police report also did not state that he had asked whether Nine knew he should have stopped for him. According to Nine s testimony, he admitted to Officer Pacheco that he should have stopped because he believed Pacheco to be referring to his running the red light. Because we view the facts in the light most favorable to upholding the verdict here, in the light most favorable to the State - we accept Officer Pacheco s later version of the facts. See Fontes, 195 Ariz. at 230, ¶ 2, 986 P.2d at 898. 4 not see directly behind him while riding his bike because his bike lacked rear-view mirrors impaired by his helmet. and his peripheral vision was He testified that he did not know that Pacheco was attempting to pull him over. ¶8 At the conclusion of the trial, the jury found Nine guilty of unlawful flight from a law enforcement vehicle. Nine was sentenced to eighteen months of unsupervised probation. Discussion ¶9 We meritorious have reviewed grounds for the record reversal of and Nine s have found conviction. no See Anders, 386 U.S. at 744; Leon, 104 Ariz. at 300, 451 P.2d at 881. Nine was present at all critical stages of the proceedings and was represented by counsel. All proceedings were conducted in Rules accordance with the Arizona of Criminal Procedure. Accordingly, we affirm the conviction and sentence. ¶10 After the filing of this decision, counsel s obligations in this appeal have ended subject to the following. Counsel need do no more than inform Nine of the status of the appeal and reveals an Nine s issue future options, appropriate for unless submission Supreme Court by petition for review. counsel s to the review Arizona State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Nine has thirty days from the date of this decision to proceed, if he desires, 5 with a pro per motion for reconsideration or petition for review. /s/ _____________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ___________________________________ DONN KESSLER, Presiding Judge /s/ ___________________________________ JON W. THOMPSON, Judge 6

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