State v. Farnberg ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
BRANDI LEIGH FARNBERG,
Appellant.
No. 1 CA-CR 21-0393
FILED 11-8-2022
Appeal from the Superior Court in Maricopa County
No. CR2018-152372-001
The Honorable Dewain D. Fox, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Aaron J. Moskowitz
Counsel for Appellant
STATE v. FARNBERG
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Randall M. Howe joined.
M O R S E, Judge:
¶1 Brandi Leigh Farnberg appeals her conviction and sentence
for misconduct involving weapons. After searching the entire record,
Farnberg's defense counsel identified 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 (1969), defense counsel asks this
Court to search the record for fundamental error. Farnberg was given an
opportunity to file a supplemental brief in propria persona but has not done
so. Finding no reversible error, we affirm Farnberg's conviction and
sentence.
FACTS AND PROCEDURAL BACKGROUND1
¶2 On October 25, 2018, police were surveilling a house in
Phoenix, Arizona. An officer saw Farnberg walk out of the house and place
a suitcase and basket on the ground near a Cadillac. Farnberg then walked
back towards the house while Jesus Amaya, who recently drove the
Cadillac to the house, placed the suitcase and basket in the backseat area of
the car. Farnberg returned to the car and drove away with Amaya in the
front passenger seat. Officers followed and later stopped the car for a traffic
violation. When officers searched the car, they found a loaded handgun,
wrapped in a red dress, inside a backpack on the floorboard behind the
driver's seat. Underneath the dress and handgun, police also found a
prescription bottle with Farnberg's name on it.
¶3 The State charged Farnberg with misconduct involving
weapons under A.R.S. § 13-3102(A)(4) (knowingly possessing a deadly
weapon while being a prohibited possessor), a class 4 felony. She was tried
in the spring of 2021. At trial, several police officers, Amaya, and Farnberg
testified. The officers testified about surveilling the house, and stopping
1 "We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant."
State v. Valencia, 186 Ariz. 493, 495 (App. 1996).
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STATE v. FARNBERG
Decision of the Court
and searching the Cadillac. One officer testified that, at the scene, Farnberg
denied owning the gun and backpack but admitted using the backpack to
store her belongings, putting her prescription in the backpack, and finding
the handgun on the back seat and placing it in the backpack.
¶4 Amaya testified that he had never seen Farnberg carry the
backpack, carry a gun, or wear the red dress. He testified that those items
were likely left by someone who rode in the back seat of the Cadillac the
night before. Farnberg testified that the backpack and items, other than the
prescription pills, were not hers and denied telling police that she stored
things or put the handgun in the backpack. She also testified that she never
touched the gun and that the prescription pills fell out of her purse while
she was looking for her identification after being pulled over.
¶5 The superior court explained to the jury that misconduct
involving weapons requires proof that the defendant knowingly possessed
a deadly weapon and was a prohibited possessor at the time of possession
of the weapon. See A.R.S. § 13-3102(A)(4). The parties stipulated that
Farnberg was a prohibited possessor. The jury convicted Farnberg of
misconduct involving weapons. The superior court later found, and
Farnberg admitted, that she had two prior historical felony convictions.
The superior court determined Farnberg was a category three repetitive
offender and sentenced her to a less-than-presumptive eight-year term of
imprisonment.
¶6 Farnberg timely appealed, and we have jurisdiction under
A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶7 Our review of the record reveals no fundamental error. See
Leon, 104 Ariz. at 300. All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure, and the record reveals that
counsel represented Farnberg at all stages of the proceedings. See Ariz. R.
Crim. P. 19.2. The State presented sufficient evidence from which the jury
could determine Farnberg's guilt beyond a reasonable doubt. See State v.
West, 226 Ariz. 559, 562, ¶ 16 (2011). The jury was comprised of eight
members. See A.R.S. § 21-102(B). The superior court properly instructed
the jury on the presumption of innocence, the burden of proof, and the
elements of the charged offense. The court received a presentence report.
Ariz. R. Crim. P. 26.4. The court afforded Farnberg an opportunity to speak
at sentencing, imposed a sentence within the statutory limits, and stated on
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STATE v. FARNBERG
Decision of the Court
the record the evidence and factors it considered in imposing the sentence.
See A.R.S. §§ 13-701, -703; Ariz. R. Crim. P. 26.9, 26.10.
CONCLUSION
¶8 We affirm Farnberg's conviction and sentence.
¶9 Upon the filing of this decision, defense counsel shall inform
Farnberg of the status of the appeal and of her future options. 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 (1984). Farnberg shall
have 30 days from the date of this decision to proceed, if she desires, with
a pro per motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
4