Opinion
No. 1 CA-CR 18-0210
04-02-2019
STATE OF ARIZONA, Appellee, v. JESUS LOPEZ SAAVEDRA, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Sharmila Roy, Laveen Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CR2017-005684-002
The Honorable Bradley H. Astrowsky, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Sharmila Roy, Laveen
Counsel for Appellant
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.
PERKINS, Judge:
¶1 Jesus Saavedra appeals his conviction and sentence for one count of burglary in the third degree. In accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969), Saavedra's counsel advised this Court that she has searched the record and found no arguable question of law and requested that we search the record for fundamental error. Saavedra was given an opportunity to file a supplemental brief in propria persona, but has not done so. We have reviewed the record and found no reversible error. Accordingly, Saavedra's conviction and sentence are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 At trial, Ty Packer, a Phoenix Police detective, testified that on March 8, 2017, a male exited a gold sport utility vehicle ("SUV") in a residential neighborhood and knocked on the door of one of the homes for an "unusual" length of time. Eventually, the male stopped knocking on the door and walked out of Packer's view. After losing sight of the male, Packer heard dogs start to bark then repositioned his unmarked squad car so he could see the alley behind the home. Packer continued to watch the alley for five to ten minutes until he saw three people jump over the block wall separating the backyard of the home from the alley. Believing a burglary had just occurred, Packer called for a marked police car to conduct a traffic stop on the SUV he had seen earlier.
¶3 Packer proceeded in his unmarked car ahead of the SUV while a marked car pulled up behind the SUV. Prior to the marked police car getting within stopping distance, the three occupants of the SUV exited the vehicle and ran from the area. Packer chased two of the men and eventually caught up with and arrested Saavedra's co-defendant, Nicholas Gates. Separately, Officer Happeny, the police officer in the marked car, saw the three men flee the SUV before he could initiate a traffic stop. Happeny followed the male who fled in a different direction than Packer and Gates. After a brief foot chase, Happeny arrested the male, later
identified as Saavedra, and searched him for weapons. During the search, Happeny found a glass-breaking device in Saavedra's possession.
¶4 After taking Gates into custody, Packer returned to the home where he had first seen the SUV's occupants and contacted the homeowner ("Victim"). Packer and Victim walked through the house to check for any missing items and discovered damage to a bedroom window at the rear of the house overlooking the fenced backyard.
¶5 The State charged Saavedra and his co-defendant Gates with burglary in the third degree, a class four felony. The State later alleged historical priors, specifically that Saavedra had previously been convicted of assisting a criminal street gang and misconduct involving weapons. The State further alleged, as aggravating factors, that Saavedra committed the offense in the presence of an accomplice, committed the offense in the expectation of pecuniary gain, evaded the police, had previously served time in prison, and committed the offense while on probation.
¶6 At trial, the State presented testimony from Packer, Victim, and Happeny, and introduced evidence including the glass-breaking device found in Saavedra's possession when he was arrested. The jury found Saavedra guilty as charged. At a separate aggravation trial, the jury further found that the State had proven the presence of an accomplice, that the offense was committed while Saavedra was on probation, and that the offense was committed in the expectation of pecuniary gain. At sentencing, the court heard evidence and determined that Saavedra had two historical prior felony convictions. The court sentenced Saavedra as a category 3 repeat offender to the presumptive term of ten years' imprisonment. This appeal followed.
DISCUSSION
¶7 On appeal, we view the facts, as reflected in the record, in the light most favorable to sustaining the conviction. State v. Harm, 236 Ariz. 402, 404 n.2 (App. 2015). Our review reveals no fundamental error. See Leon, 104 Ariz. at 299-300 (describing our Anders review process). An individual is guilty of burglary in the third degree, as relevant here, if the individual enters or remains unlawfully in a fenced residential yard "with the intent to commit any theft or any felony therein." Ariz. Rev. Stat. ("A.R.S.") § 13-1506(A)(1). Our review of the record reveals sufficient evidence which would allow a jury to determine, beyond a reasonable doubt, that Saavedra is guilty of the charged offenses.
¶8 The record reflects that all proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, that Saavedra was represented by counsel at all stages of the proceedings, and was present at all critical stages including the entire trial and the verdict. See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel); State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present at critical stages). The jury was properly composed of eight jurors, and the record shows no evidence of jury misconduct. A.R.S. § 21-102; Ariz. R. Crim. P. 18.1(a). The court properly instructed the jury on the elements of the charged offense, the State's burden of proof, and Saavedra's presumption of innocence. At sentencing, Saavedra had the opportunity to speak, and the court stated on the record the factors it found in imposing the sentences. Ariz. R. Crim. P. 26.9, 26.10. The sentences imposed were within the statutory limits. See A.R.S. §§ 13-701 to -709.
CONCLUSION
¶9 This Court has read and considered counsel's brief and has searched the provided record for fundamental error and has found none. Leon, 104 Ariz. at 300; State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). Accordingly, Saavedra's conviction and resulting sentence are affirmed.
¶10 Upon filing of this decision, defense counsel is directed to inform Saavedra of the status of the appeal and of his future options. Defense counsel has no further obligations unless, upon review, counsel identifies an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Saavedra shall have 30 days from the date of this decision to proceed, if he desires, with motion for reconsideration or petition for review in propria persona.