State v. Remy-Apodaca ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
ERICK REMY-APODACA, Appellant.
No. 1 CA-CR 13-0940
FILED 3-19-2015
Appeal from the Superior Court in Maricopa County
No. CR2011-005053-002
The Honorable David B. Gass, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Terry Reid
Counsel for Appellant
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.
STATE v. REMY-APODACA
Decision of the Court
J O N E S, Judge:
¶1 Erick Remy-Apodaca appeals his convictions and sentences
for one count of possession of marijuana for sale and three counts of
misconduct involving weapons. Remy-Apodaca’s defense counsel has
searched the record on appeal, and asserts having found no arguable
question of law that is not frivolous. Therefore, in accordance with Anders
v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d
878 (1969), counsel asks this Court to search the record for fundamental
error. Remy-Apodaca was granted an opportunity to file a supplemental
brief in propria persona, but he did not do so. After reviewing the record, we
find no fundamental error. Accordingly, we affirm Remy-Apodaca’s
convictions and sentences.
FACTS1 AND PROCEDURAL HISTORY
¶2 In October 2010, during the course of an unrelated drug
investigation, Glendale police officers observed a known money courier
and proceeded to follow his vehicle. The money courier drove through
multiple parking lots until it eventually stopped in a Walgreen’s parking
lot. There, the money courier exited his vehicle and entered a white truck
that had just arrived. After a few minutes, the money courier returned to
his vehicle, and both vehicles left the parking lot. The officers, already
knowing the money courier’s residence, chose to follow the truck, which
led them to a residence on 91st Drive (the house).
¶3 Officers then conducted surveillance on the house on four
non-consecutive days over a two-week period. Throughout the
surveillance, Remy-Apodaca was seen coming and going from the house in
a white Ford F-150, which was parked in the driveway of the house at the
beginning and end of each day. He was also observed outside the house
smoking cigarettes and watching the street, and performing mundane
chores, such as getting takeout food and maintaining the F-150 in the
driveway.
¶4 On October 21, officers executed a search warrant on the
house after individuals associated with the location were observed making
a “vehicle switch,” a common procedure for trafficking drugs. Officers
gained entry to the house with a key recovered from Remy-Apodaca when
1 “We view the evidence and all reasonable inferences therefrom in
the light most favorable to sustaining the jury’s verdicts.” State v. Miles, 211
Ariz. 475, 476, ¶ 2, 123 P.3d 669, 670 (App. 2005).
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STATE v. REMY-APODACA
Decision of the Court
he was stopped in the F-150 a short while earlier in connection with this
investigation.
¶5 The house itself lacked furnishings or personal effects, which
an officer testified was common with drug stash houses. In one bedroom
of the house, officers discovered 431 pounds of a substance later confirmed
to be marijuana, which was almost entirely packed into plastic-wrapped
bales. Testimony at trial established that a typical user would use only a
quarter-ounce of marijuana per day, and that the total value of the
marijuana was approximately $200,000. In another bedroom, officers
discovered a firearm standing in a corner. In that same room were items
that indicated another person in the operation, Enrique, was its occupant.
In the kitchen, officers found ledgers that listed weights and prices of
marijuana.
¶6 In the master bedroom, officers discovered an assault rifle, a
revolver, and two pistols on the bed, and a shotgun standing in the corner.
In the master closet, officers observed, but did not impound, a prescription
medicine bottle containing the name “ERICK,” insulin and syringes,
cigarettes, and a pair of flip-flops that resembled those worn by Remy-
Apodaca throughout the surveillance.
¶7 In addition to the house key, officers found a utility bill for
the house and $1,380 in cash on Remy-Apodaca’s person. Later, during the
booking process at the police station, Remy-Apodaca asked an officer when
he would be able to get his insulin, which he stated was at his house.
¶8 Remy-Apodaca was indicted on five counts: possession of
marijuana for sale in violation of Arizona Revised Statutes (A.R.S.) section
13-3405(A)(2)2 (count 1); misconduct involving weapons by “[u]sing or
possessing a deadly weapon during the commission of any felony [drug]
offense” in violation of A.R.S. § 13-3102(A)(8) (counts 2 through 4); and
money laundering in the second degree in violation of A.R.S. § 13-
2317(B)(3) (count 5). Before trial, the State voluntarily dismissed count 5. A
jury convicted Remy-Apodaca of the remaining counts as charged.
¶9 The trial court sentenced Remy-Apodaca to a slightly
aggravated term of 7.5 years’ imprisonment on count 1 and imposed a total
fine of $47,750. See A.R.S. § 13-3405(D). On counts 2 through 4, the court
2 Absent material revisions from the relevant date, we cite a statute’s
current version.
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STATE v. REMY-APODACA
Decision of the Court
suspended the imposition of sentence and placed Remy-Apodaca on
supervised probation for a period of three years following his release from
prison. The court also awarded Remy-Apodaca 247 days of presentence
incarceration credit.
DISCUSSION
¶10 The record reflects Remy-Apodaca received a fair trial. As far
as the records reveals, he was represented by counsel at all stages of the
proceedings and was present at all critical stages. The court did not conduct
a voluntariness hearing, but neither Remy-Apodaca nor the evidence put
into question the voluntariness of his statements to police. See State v. Smith,
114 Ariz. 415, 419-20, 561 P.2d 739, 743-44 (1977) (finding no error in lack of
voluntariness hearing where defendant did not object to admission of his
statements); see also State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974).
¶11 Sufficient evidence was provided to allow a reasonable jury
to convict Remy-Apodaca of the crimes charged. Although Remy-Apodaca
was entitled to only an eight member jury, the jury panel here was
comprised of twelve members.3 The jury was properly instructed upon the
elements of the charges and that the burden of proof rested with the State.
The jury returned a unanimous verdict, which was confirmed through a
poll of the jurors, and there is no indication of jury misconduct. The court
received and considered a presentence report, afforded Remy-Apodaca an
opportunity to speak before his sentencing, and addressed the aggravating
and mitigating factors it considered in imposing sentence. Additionally,
the sentences imposed were within the statutory limits.
CONCLUSION
¶12 We have reviewed the entire record for reversible error and
find none. Therefore, we affirm Remy-Apodaca’s convictions and
sentences. See Leon, 104 Ariz. at 300, 451 P.2d at 881.
3 As originally charged, Remy-Apodaca faced a possible sentence
exceeding thirty years, which triggered the requirement for a panel of
twelve jurors. See A.R.S. § 21-102(A). When the State dismissed count 5,
the maximum possible sentence was reduced to less than thirty years,
requiring only an eight member jury. See A.R.S. § 21-102(B). By the time
the parties realized the effect of the dismissal, the jury had been selected
and the State had proceeded to put on its case, so they agreed to continue
with a twelve person jury.
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STATE v. REMY-APODACA
Decision of the Court
¶13 After the filing of this decision, defense counsel’s obligations
pertaining to Remy-Apodaca’s representation in this appeal have ended.
Defense counsel need do no more than inform Remy-Apodaca of the
outcome of this appeal and his future options, unless, upon review, counsel
finds an issue appropriate for submission to our supreme court by petition
for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57
(1984).
¶14 Upon the Court’s own motion, Remy-Apodaca has thirty
days from the date of this decision to file, if he wishes, an in propria persona
motion for reconsideration. See id. Remy-Apodaca also has thirty days
from the date of this decision to proceed, if he wishes, with an in propria
persona petition for review. See Ariz. R. Crim. P. 31.19(a).
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