State v. Gaitan
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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.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, 1 CA-CR 10-0400 Appellee, DIVISION ONE FILED: 06/30/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) v. SIMON O. GAITAN, Appellant. Appeal from the Superior Court in Maricopa County Cause No. CR2008-008244-001 DT The Honorable Sally S. Duncan, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Maricopa County Public Defender By Cory Engle, Deputy Public Defender Attorneys for Appellant Phoenix I R V I N E, Presiding Judge ¶1 This appeal is timely filed in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Simon O. Gaitan, asks this Court to search the record for fundamental error. Gaitan was given an opportunity to file a supplemental brief in propria persona. He has not done so. After reviewing the record, we affirm Gaitan s convictions and sentences for one count of possession or use of dangerous drugs, a class 4 felony, and one count of possession of drug paraphernalia, a class 6 felony. FACTS AND PROCEDURAL HISTORY ¶2 We view the facts in the light most favorable to sustaining the trial court s judgment and resolve all reasonable inferences against Gaitan. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). On the night of November 15, 2006, a patrol officer observed Gaitan and another man standing behind some bushes of a housing subdivision. Gaitan dropped to his knee and discarded something under a bush. The officer investigated and discovered a meth pipe and a bag containing a white crystal substance in plain view at the base of the bush. The officer read Gaitan his Miranda 1 rights. Gaitan subsequently confessed that methamphetamine the his pipe was his girlfriend and had that the given bag him. contained Lab tests confirmed that the substance was in fact methamphetamine. ¶3 The State charged Gaitan with one count of possession or use of dangerous drugs, a class 4 felony, and one count of 1 See Miranda v. Arizona, 384 U.S. 436 (1966). 2 possession of drug paraphernalia, a class 6 felony. At the close of evidence, the trial court properly instructed the jury on the elements of the offenses. Gaitan was convicted as charged. The trial court conducted the sentencing hearing in compliance with Gaitan s constitutional rights and Rule 26 of the Arizona Rules of Criminal Procedure. Gaitan received concurrent one-year terms of probation for each count. DISCUSSION ¶4 We review Gaitan s convictions and sentences for fundamental error. See State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). Counsel for Gaitan has advised this Court that after a diligent search of the entire record, counsel has found no arguable question of law. We have read and considered counsel s brief and fully reviewed the record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. ¶5 All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, Gaitan was represented by counsel at all stages of the proceedings. hearings. The jury The court correctly conducted consisted appropriate of eight pretrial jurors. The State presented sufficient evidence to allow a jury to convict Gaitan as charged. The jury instructions correctly stated the burden of proof, presumption of innocence, and the elements of 3 the charges. The jury returned unanimous guilty verdicts on both counts. At opportunity sentencing, both to Gaitan s speak. Gaitan and his sentences counsel were had within an the statutory permissible ranges. We decline to order briefing and we affirm Gaitan s convictions and sentences. ¶6 Upon the filing of this decision, defense counsel shall inform Gaitan of the status of his appeal and of his future 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). Gaitan shall have thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. CONCLUSION We affirm. /s/ PATRICK IRVINE, Presiding Judge CONCURRING: /s/ JOHN C. GEMMILL, Judge /s/ PHILIP HALL, Judge 4
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