State v. Pena

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ROGER PENA, Appellant.
No. 1 CA-CR 15-0440
FILED 1-14-2016
Appeal from the Superior Court in Maricopa County
No. CR2014-145746-001
The Honorable Richard L. Nothwehr, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
STATE v. PENA
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia A. Orozco joined.
P O R T L E Y, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant
Roger Pena has advised us that he has searched the entire record, but has
been unable to discover any arguable questions of law, and has filed a brief
requesting us to conduct an Anders review of the record. Pena did not take
the opportunity to file a supplemental brief.
FACTS1
¶2 Pena was stopped and arrested by a Department of Public
Safety officer for criminal speeding (100 miles per hour in a 55 miles per
hour zone) on June 25, 2013. The officer searched him and found a plastic
baggie containing a green leafy substance in his right pocket; and the
officer’s experience suggested that the substance was marijuana. Pena was
read his Miranda2 rights, agreed to talk with the officer and said the
substance was marijuana.
¶3 Pena was subsequently charged with possession of
marijuana, but the State requested the charge be reduced to a class 1
misdemeanor before trial. Pena did not object and the court granted the
motion, which resulted in a bench trial. At the bench trial, the officer
testified about the events of the traffic stop, the search, and his discussions
with Pena. The court also heard from a criminalist, who testified that the
substance was examined and, in her expert opinion, stated the substance
was a usable amount of marijuana.
¶4 Pena testified on his own behalf. He testified that he lived
with his parents, a younger brother, and a 23-year-old cousin; that he got
1 We view the facts “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v.
Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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STATE v. PENA
Decision of the Court
up late, grabbed some pants on the floor, and rushed out the door. He,
however, recalled that his cousin was the last person to wear the pants
before he put them on. He also admitted he told the officer the substance
was marijuana and belonged to a friend, but only because that is what he
thought the officer wanted to hear. As a result, Pena argued the evidence
demonstrated there was reasonable doubt and he did not knowingly
possess the marijuana.
¶5 The court found Pena guilty as charged. Pena’s sentence was
subsequently suspended and he was placed on unsupervised probation for
twelve months with monitoring by the adult probation department, and
given community service, fines and fees. He filed this appeal, 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 -4033(A)(1).3
DISCUSSION
¶6 We have read and considered the opening brief and have
searched the entire record for reversible error. We find no reversible error.
See Leon, 104 Ariz. at 300, 451 P.2d at 881.
¶7 Pena was properly stopped by the DPS officer because he was
driving his car at a speed greatly in excess of the posted speed limit. See
State v. Evans, 237 Ariz. 231, 234, ¶¶ 7-8, 349 P.3d 205, 208 (2015). After he
was arrested for criminal speeding, Pena was lawfully searched incident to
his arrest, and the marijuana discovered was lawfully seized. See Chimel v.
California, 395 U.S. 752, 755, 763 (1969) (stating the Fourth Amendment
recognizes a lawful search incident to arrest can occur without a warrant
and includes seizing any evidence found on the arrestee’s person to prevent
its concealment or destruction).
¶8 Pena was charged with knowing possession of marijuana,
requested a preliminary hearing, and, after the hearing, the trial court found
there was probable cause for him to stand trial. See A.R.S. § 13-3405(A)(1).
Our review of the record demonstrates that at the trial, given that the court
had to determine credibility and the weight to give to the evidence, there
was substantial evidence demonstrating that Pena knowingly possessed a
usable amount of marijuana, a class 1 misdemeanor. Moreover, all of the
3We cite the current version of the applicable statutes absent changes
material to this decision.
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STATE v. PENA
Decision of the Court
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. The record reveals that Pena was represented by
counsel at all stages of the proceedings, and the sentence imposed was
within the statutory limits.
¶9 After this decision is filed, counsel’s obligation to represent
Pena in this appeal has ended. Counsel must only inform Pena of the status
of the appeal and his future options, unless counsel identifies an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
Pena may, if desired, file a motion for reconsideration or petition for review
pursuant to the Arizona Rules of Criminal Procedure.
CONCLUSION
¶10 Accordingly, we affirm Pena’s conviction and sentence.
:ama
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