Opinion
No. 1 CA-CR 12-0781
05-27-2014
STATE OF ARIZONA, Appellee, v. GABRIEL JOHN SANCHEZ, Appellant
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Charles R. Krull Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
CR2011-142899-001
The Honorable Bruce R. Cohen, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Charles R. Krull
Counsel for Appellant
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge Kent E. Cattani joined. GEMMILL, Judge:
¶1 Gabriel John Sanchez appeals from his convictions and sentences of misconduct involving weapons, a class 4 nondangerous felony, and two counts of aggravated assault, class 3 nondangerous felonies. Sanchez's counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. Sanchez was afforded the opportunity to file a pro se supplemental brief and he has done so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). For the following reasons, we affirm.
BACKGROUND
¶2 "We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the convictions." State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001).
¶3 On March 4, 2011, S.T. and J.C. (the victims) were driving northbound on 67th Avenue near Peoria Avenue when they were "brake checked" by a red Subaru hatchback after both cars attempted to simultaneously switch lanes. The victims responded by honking their horn and changing lanes to the left. Both cars came to a stop at a red light, parallel to each other. While waiting for the light to change, two passengers of the Subaru exited the car and approached the front passenger side of the victims' vehicle. A Hispanic male, later identified as Defendant Sanchez, smashed the passenger seat window of the victims' car with the butt of a handgun and shouted, "what the fuck is your problem." Then either Sanchez or the other man from the Subaru, Kevin Hitsmen, demanded the victims' cell phones and money. When the light turned green, Sanchez and Hitsmen returned to the Subaru, which drove off.
¶4 The victims called the police and then drove to a nearby Shell gas station to wait for them to arrive. Glendale Police Officer Jones responded to the Shell station and spoke to the victims about the incident. One victim described the defendant as a Hispanic male with a mustache and noted that one of the aggressors wore a dark colored sweatshirt and the other wore a purple jersey. S.T. provided a license plate number for the red Subaru and a description of a gun used in the incident. Officer Jones examined the victims' car and noted a broken front passenger window and shattered glass on the seats and floorboards.
¶5 The next day, the victims were driving in the vicinity of 83rd Avenue and Peoria Avenue when they spotted a red Subaru with a similar license plate number. Officer Jones again responded to the victims' call and later spoke to the owner of the Subaru, Samantha Sanchez (Defendant Sanchez's sister). Officer Jones peered into the car while standing outside the front passenger door and saw a purple jersey on the passenger side floorboard. Several months later, Glendale Police Officer Zygmont searched Defendant Sanchez's residence pursuant to a warrant and found .45 caliber ammunition. Based on all the evidence, an arrest warrant was obtained and executed on Sanchez and his girlfriend, Judith Ybarra, who was present in the Subaru at the time of the incident. During the arrest, Ybarra told police she had a gun in her purse, and police subsequently recovered a black gun allegedly used in the March 4th altercation.
¶6 On October 31, 2012, Sanchez was convicted of misconduct involving weapons, a class 4 felony; and two counts of aggravated assault, class 3 felonies. At trial, the parties stipulated that Sanchez was a prohibited possessor and had one historical prior conviction from a weapons misconduct charge in Wyoming. During his testimony, Sanchez also admitted two additional felony convictions from 1996 and 1997 in Maricopa County. During sentencing, the court determined that there were aggravating factors present: Sanchez's prior felony convictions and the presence of multiple victims. The court found, in mitigation, that Sanchez intended to defend his sister and that there was no evidence of intent by Sanchez to rob the victims. Sanchez was sentenced to 4.5 years of incarceration for the class 4 misconduct involving weapons conviction and 6.5 years of incarceration for each conviction for the class 3 aggravated, nondangerous assault. The sentences were ordered to be served concurrently, and Sanchez was given 474 days of presentence incarceration credit against each sentence.
¶7 Sanchez timely appeals, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and 13-4033.
ANALYSIS
¶8 Sanchez raises four arguments in his supplemental brief.
I. Insufficient Probable Cause to Arrest
¶9 Sanchez argues the arresting officer lacked probable cause to execute an arrest warrant on him on August 18, 2011, several months after the altercation. Because Sanchez failed to raise this objection at trial, we will review the record for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶19, 115 P.3d 601, 607 (2005).
¶10 The police must have probable cause to arrest, which exists if there are reasonable grounds to believe that an offense is being or has been committed by the person arrested. State v. Lawson, 144 Ariz. 547, 553, 698 P.2d 1266, 1272 (1985). Probable cause may be established by a totality of the facts and circumstances, including the collective knowledge of all law enforcement personnel involved. Id.; State v. Peterson, 171 Ariz. 333, 335, 830 P.2d 854, 856 (App. 1991).
¶11 Officer Jones investigated the incident and obtained a description of Sanchez and the red Subaru. He also examined the victim's car and noted a broken front passenger window and shattered glass. The following day, Officer Jones spoke to the owner of the red Subaru and saw clothing that matched the description given by the victims. The owner, Samantha Sanchez, admitted she was driving the previous day and that her brother was in the car with her. The record demonstrates that there was probable cause for law enforcement officers to believe that a crime had been committed and that Sanchez committed it. Because there was probable cause for the issuance of the arrest warrant, we conclude that there was no error, much less fundamental error, regarding the issuance of a warrant to arrest Sanchez. See Henderson, 210 Ariz. at 567, ¶19, 115 P.3d at 607.
II. Insufficient Probable Cause Based on Biased Statements
¶12 Sanchez next argues that even if probable cause existed for a lawful arrest, the probable cause arose from biased statements made by Hitsmen who, according to witnesses, demanded money and cell phones from the victims. We disagree. Even if Hitsmen provided police with some evidence to support the arrest warrant, the record in this case demonstrates that there was other evidence (including the victims' statements) separate and apart from Hitsmen's statement, to support the arrest warrant. Moreover, information from one person involved in committing the crime may be considered in determining the existence of probable cause against the other perpetrator. See Lawson, 144 Ariz. at 553, 698 P.2d at 1272.
III. Unlawful Detention
¶13 Sanchez next contends that Glendale Police officers falsely arrested and unlawfully detained him when they arrested him for armed robbery, because he was not ultimately convicted on that charge. The argument lacks merit.
¶14 False arrest is defined as the unlawful detention of a person without his consent and without lawful authority. Slade v. City of Phoenix, 112 Ariz. 298, 300, 541 P.2d 550, 552 (1975). Detention that occurs pursuant to a valid warrant or probable cause is not an unlawful detention or false arrest. Id.
¶15 As previously noted, police officers had probable cause to arrest Sanchez based on the description of the incident by the victims and the subsequent questioning of Samantha Sanchez. Officer Jones observed that the jersey that he saw on the floorboard of the Subaru fit the description of the clothing worn by Sanchez or the other aggressor the night of the altercation. The police later procured and executed a valid arrest warrant on August 18, 2011. Because the arrest occurred pursuant to a valid warrant supported by probable cause, no unlawful detention occurred notwithstanding Sanchez's ultimate acquittal on the armed robbery charge. The fact that a defendant is acquitted of some or all of the charges brought against him does not mean that he was unlawfully detained. See Slade, 112 Ariz. at 300, 541 P.2d at 552.
IV. Sufficiency of Evidence
¶16 Sanchez argues that the evidence presented did not link the handgun found on his girlfriend during their August 18th arrest to the March 4th incident. To determine if there was sufficient evidence to convict Sanchez of misconduct involving weapons and aggravated assault, however, the only relevant question regarding a weapon was whether Sanchez committed the crime with one, not whether it was the same deadly weapon found on Judith Ybarra at a later date. The jury was correctly instructed about the elements of misconduct involving weapons and aggravated assault. The jury was instructed that the State had to prove beyond a reasonable doubt that Sanchez had a prior felony conviction and that he possessed a deadly weapon. And, the jury found that the State proved beyond a reasonable doubt that Sanchez committed the aggravated assault by knowingly possessing a deadly weapon and that he used the deadly weapon while intentionally placing the victims in reasonable apprehension of imminent physical injury. See Ariz. Rev. Stat. §§ 13-3102, -1203, -1204(A)(2).
¶17 At trial, Sanchez admitted that he possessed a gun during the incident and was "probably guilty of causing criminal damage" when he smashed the window with that gun. The victims saw the gun before Sanchez smashed the window and were in fear as a result of his actions. Further, the parties stipulated to the fact that Sanchez was a prohibited possessor. On this record, substantial evidence supports the jury's determination that the State proved beyond a reasonable doubt that Sanchez committed the crimes.
¶18 Having considered defense counsel's brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find no fundamental, reversible error. The evidence presented supports the convictions and the sentences imposed fall within the range permitted by law. Sanchez was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure.
¶19 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984), counsel's obligations in this appeal have ended. Counsel need do no more than inform Sanchez of the disposition 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. Sanchez has thirty days from the date of this decision in which to proceed, if he desires, with a pro se motion for reconsideration or petition for review.
CONCLUSION
¶20 Sanchez's convictions and sentences are affirmed.