Opinion
No. 1 CA-CR 11-0623 No. 1 CA-CR 12-0064
07-10-2012
STATE OF ARIZONA, Appellee, v. DAVID CHAYREZ, III, Appellant.
Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Bruce Peterson, Maricopa County Legal Advocate by Thomas J. Dennis, Deputy Legal Advocate Attorneys for Appellant
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
(Consolidated)
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause Nos. CR2010-157391-003
CR2008-007877-001
The Honorable Randall H. Warner, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
by Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix Bruce Peterson, Maricopa County Legal Advocate
by Thomas J. Dennis, Deputy Legal Advocate
Attorneys for Appellant
Phoenix HALL, Judge ¶1 David Chayrez, III (defendant) appeals from his convictions and the sentences imposed. For the reasons set forth below, we affirm. ¶2 Defendant's appellate 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 that, after a diligent search of the record, he was unable to find any arguable grounds for reversal. This court granted defendant an opportunity to file a supplemental brief, which he has not done. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). ¶3 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003). ¶4 On October 29, 2010, defendant was charged by information with one count of conspiracy to commit possession of marijuana for sale (Count I), a class two felony, one count of possession of marijuana for sale (Count II), a class two felony, and one count of misconduct involving weapons (Count III), a class four felony. The State also alleged that defendant had two historical prior felony convictions. ¶5 The following evidence was presented at trial. In October 2010, Sergeant Timothy Click of the Chandler Police Department was working with two confidential informants (CIs) on a drug investigation. On October 26, 2010, one of the CIs contacted Sergeant Click and told him that an individual named "Eduardo . . . had a buyer for 800 pounds of marijuana." ¶6 Sergeant Click provided the CIs with a "bundle" of marijuana to take with them for a "flash," a meeting with the prospective buyers to demonstrate the quality of the marijuana. The sergeant then outfitted the CIs with body wires and had them set up a meeting with the prospective buyers at a gas station. After the CIs arrived at the gas station, Sergeant Click observed two individuals exit a blue BMW and get inside the CIs' vehicle. The CIs drove around the area and showed the occupants of the BMW the bundle of marijuana. The occupants of the BMW took a small sample of the marijuana and told the CIs that they would be in contact with them. ¶7 After the "flash" meeting, the prospective buyers changed their order to 400 pounds of marijuana in two 200-pound increments. Sergeant Click had 200 pounds of marijuana delivered to a warehouse and loaded into a Toyota Camry. The CIs then arranged to have the buyers meet them at the warehouse. Sergeant Click and other police officers moved in to arrest the buyers after the marijuana had been removed from the Toyota Camry. When defendant was searched incident to his arrest, officers found marijuana in his pocket. ¶8 A surveillance video of the warehouse transaction showed defendant taking a piece of marijuana and wrapping it in cellophane then placing it in his front right pants pocket. At trial, one of the CIs testified that defendant wanted a sample to take to "his own buyers." The surveillance video also showed defendant "[l]ift[ing] his shirt and remov[ing] an object." The object, later seized, was identified at trial as a handgun. ¶9 After an eight-day trial, the jury found defendant guilty as charged. The jury further found the weight of the marijuana in Count II was over four pounds. The trial court found that defendant had one prior historical felony conviction and sentenced him to concurrent, presumptive terms of 9.25 years' imprisonment on Counts I and II and a concurrent, presumptive term of 4.5 years' imprisonment on Count III. ¶10 We have read and considered counsel's brief and have searched the entire record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentences imposed were within statutory limits. Furthermore, based on our review of the record, there was sufficient evidence for the jury to find that defendant committed the offenses for which he was convicted. ¶11 After the filing of this decision, counsel's obligations pertaining to defendant's representation in this appeal have ended. Counsel need do no more than inform defendant of the status 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. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. Accordingly, defendant's convictions and sentences are affirmed.
The State filed an amended Information on April 13, 2011 to correct a "technical defect."
The State alleged that defendant had two prior felony convictions arising out of the same cause number and committed on the same date. At the sentencing hearing, the trial court found the State had proven defendant has a historical prior felony conviction. Although the sentencing minute entry states that defendant was sentenced based on two felony convictions, the sentences imposed correspond to those for a category two offender and it is clear from the record that the court intended to sentence defendant based on one prior felony conviction. See State v. Bowles, 173 Ariz. 214, 216, 841 P.2d 209, 211 (App. 1992) (explaining that, when there is an inconsistency in sentencing, remand for resentencing is unnecessary if the trial court's intent is clear from the record).
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PHILIP HALL, Judge
CONCURRING: MAURICE PORTLEY, Presiding Judge
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DIANE M. JOHNSEN, Judge