State v. Serrano ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
VALENTE TITO SERRANO, Appellant.
No. 1 CA-CR 18-0397
FILED 12-13-2018
Appeal from the Superior Court in Maricopa County
No. CR2017-119804-001
The Honorable Frank W. Moskowitz, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
STATE v. SERRANO
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge Michael J. Brown joined.
M O R S E, Judge:
¶1 After reviewing the record, we affirm Valente Tito Serrano's
("Serrano") conviction and sentence. Serrano timely appeals his conviction
and sentence for possession of a deadly weapon while a prohibited
possessor. See Ariz. Rev. Stat. ("A.R.S.") § 13-3102(A)(4). After searching
the entire record, Serrano'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. Serrano
was also allowed to file a supplemental brief in propria persona but did not
do so. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On April 28, 2017, at approximately 10:00 p.m., police officers
Daley and Aguirre approached a red Jeep that was parked in a handicap
parking spot in front of a closed business. Two passengers were exiting the
vehicle—Serrano from the front passenger side, and another man from the
driver side. As the officers approached, Serrano began to reach into the
passenger area of the Jeep. The officers directed Serrano to show them his
hands and sit on the ground, and Serrano complied.
¶3 While Serrano was seated on the curb, Officer Aguirre spoke
with the other passenger, who consented to a search of the vehicle. Serrano
seemed "frantic" because he was looking around, talking to himself, and
looking at the Jeep. Due to Serrano's behavior, the officers placed Serrano
in the back of their patrol car. Officer Aguirre then searched the Jeep.
¶4 The search revealed that there was an operable shotgun in a
pool cue bag in the back of the vehicle. After being read his Miranda1 rights,
Serrano admitted that he received the gun in the pool cue bag from another
man earlier in the day, the man had given him $50, and the man told him
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2
STATE v. SERRANO
Decision of the Court
to give the gun and the money to a black car that was coming to pick them
up. Serrano also acknowledged he was a prohibited possessor and was on
probation.
¶5 The State indicted Serrano of possessing a deadly weapon
while a prohibited possessor, a class 4 felony. It alleged three historical
prior felony convictions and the aggravating factor of committing the
offense while on probation. After a two-day trial, a jury found Serrano
guilty of the offense and that the State had proven the aggravating factor.
¶6 The superior court conducted the sentencing hearing in
compliance with Serrano's constitutional rights and Arizona Rule of
Criminal Procedure 26. Serrano admitted to the three prior historical
felonies. The court sentenced Serrano to the presumptive term of ten years'
imprisonment. It also imposed a $20 probation assessment, $20 time-
payment fee, $13 criminal-penalty assessment, and $2 victim-rights-
enforcement assessment.
DISCUSSION
¶7 "We view the facts in the light most favorable to sustaining
the convictions with all reasonable inferences resolved against the
defendant." State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citation
omitted). Our review reveals no fundamental error. See Leon, 104 Ariz. at
300 ("An exhaustive search of the record has failed to produce any
prejudicial error."). The proceedings were conducted in compliance with
the Arizona Rules of Criminal Procedure. The record reveals that Serrano
was represented by counsel at all critical stages and was present at all
critical stages of the proceedings. See State v. Conner, 163 Ariz. 97, 104 (1990)
(right to counsel at critical stages); State v. Bohn, 116 Ariz. 500, 503 (1977)
(right to be present at critical stages).
¶8 The jury was properly comprised of eight jurors, and the
record shows no evidence of juror misconduct. See A.R.S. § 21-102(B); Ariz.
R. Crim. P. 18.1(a). The trial court properly instructed the jury on the
elements of the charged offense, the State's burden of proof, the necessity
of a unanimous verdict, and the presumption of innocence. At sentencing,
Serrano was given an opportunity to speak, and the court explained the
basis for imposing the sentence. See Ariz. R. Crim. P. 26.9, 26.10.
Additionally, the court imposed an appropriate sentence within the
statutory limits. See A.R.S. § 13-703(J).
3
STATE v. SERRANO
Decision of the Court
CONCLUSION
¶9 Serrano's conviction and sentence are affirmed. Defense
counsel shall inform Serrano of the status of the appeal and of his 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).
¶10 Serrano has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona motion for
reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
4