State v. Salazar

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL
PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
ZAKARIYA SALAZAR, Appellant.
No. 1 CA-CR 13-0293
FILED 4-3-2014
Appeal from the Superior Court in Maricopa County
No. CR2012-136389-002
The Honorable Robert E. Miles, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
STATE v. SALAZAR
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.
N O R R I S, Judge:
¶1 Zakariya Salazar timely appeals from his convictions and
sentences for two counts of misconduct involving weapons and one count
each of misconduct involving body armor, possession of dangerous drugs
(methamphetamine), and possession of drug paraphernalia. After
searching the record on appeal and finding no arguable question of law
that was not frivolous, Salazar’s counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and
State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search
the record for fundamental error. This court granted counsel’s motion to
allow Salazar to file a supplemental brief in propria persona, but he did not
do so. After reviewing the entire record, we find no fundamental error
and therefore affirm Salazar’s convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND 1
¶2 On July 10, 2012, at approximately 6:34 a.m., Salazar and a
passenger drove into Salazar’s driveway after being pulled over for a
traffic stop by Phoenix police. Salazar got out of his truck and began
walking toward his house. One of the officers asked Salazar to return, and
Salazar did so. The officer noticed Salazar was wearing what he believed
to be body armor. The officer asked Salazar if he was wearing body
armor, and Salazar confirmed that he was. Salazar also told the officer
there was an AK-47 in his truck.
¶3 The officer then detained Salazar, handcuffed him, patted
him down, and found a pill bottle in Salazar’s pocket. The officer asked
Salazar if the pill bottle contained illegal drugs, and Salazar admitted it
did. The officer then opened the pill bottle and saw what he thought to be
1We view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Salazar.
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989) (citing State v.
Tyson, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981)).
2
STATE v. SALAZAR
Decision of the Court
illegal drugs. The officer arrested Salazar. Tests later confirmed the pill
bottle contained methamphetamine.
¶4 After the officer arrested Salazar, Salazar told the officer he
was a convicted felon and knew he was not supposed to be in possession
of firearms. The officer then checked to see if Salazar had firearms in his
truck and found a loaded AK-47 lying on the seat and a loaded 9
millimeter handgun on the floorboard.
¶5 A grand jury indicted Salazar for two counts of misconduct
involving weapons and one count each of misconduct involving body
armor, possession or use of dangerous drugs (methamphetamine), and
possession of drug paraphernalia. At trial, Salazar stipulated he was a
prohibited possessor under Arizona law because he had been convicted of
a felony in 2004 and his rights had not been restored. A 12-person jury
convicted Salazar of all counts.
¶6 At sentencing, the superior court found Salazar had been
convicted of one prior felony. See infra ¶ 9. The court sentenced Salazar to
the presumptive terms of 4.5 years for each count of misconduct involving
weapons, misconduct involving body armor, and possession of dangerous
drugs and a presumptive term of 1.75 years for the count of possession of
drug paraphernalia, with all sentences to run concurrently. Salazar
received 254 days of presentence incarceration credit.
DISCUSSION
¶7 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Salazar received a
fair trial. Counsel represented Salazar at all stages of the proceedings, and
Salazar was present at all critical stages.
¶8 The State presented substantial evidence that supported the
verdicts. The superior court properly empanelled a 12-person jury and
instructed the jury on the elements of the charges, Salazar’s presumption
of innocence, the State’s burden of proof, and the necessity of a
unanimous verdict. The court received and considered a presentence
report, Salazar addressed the court at the sentencing hearing, and the
court imposed sentences within the range of acceptable sentences for
Salazar’s offenses.
¶9 At trial, Salazar stipulated to multiple facts, including that
he was a convicted felon and a prohibited possessor -- required elements
3
STATE v. SALAZAR
Decision of the Court
for two of the charged offenses. See A.R.S. § 13-3101(A)(7)(b) (Supp. 2013);
see also A.R.S. § 13-3102(A)(4) (Supp. 2013). We note, however, the
superior court did not instruct the jury that it could accept or reject the
stipulations. See State v. Allen, 223 Ariz. 125, 127, ¶ 11, 220 P.3d 245, 247
(2009) (citation omitted); see also Rev. Ariz. Jury Instr. Stand. Crim. 3.
Even so, Salazar was not prejudiced by this because the court informed
him of the rights he was giving up and the effect his stipulation would
have on possible sentencing ranges. Further, at the sentencing hearing,
the State introduced into evidence certified records of his prior
conviction. 2
CONCLUSION
¶10 We decline to order briefing and affirm Salazar’s convictions
and sentences.
¶11 After the filing of this decision, defense counsel’s obligations
pertaining to Salazar’s representation in this appeal have ended. Defense
counsel need do no more than inform Salazar of the outcome of this
appeal and his future options unless, upon review, counsel finds 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).
2The superior court also gave the jury a final jury instruction
regarding stipulations that contradicted the preliminary jury instruction it
gave to the jury regarding stipulations. In the preliminary instructions,
the court stated: “[I]f the lawyers for both parties agree or stipulate that
some particular fact is true, you should accept it as the truth,” but in the
final instructions, the court did not instruct the jury it should accept
stipulated facts as true. Instead, it informed the jury: “The lawyers are
permitted to stipulate that certain facts exist. This means that both sides
agree those facts do exist and are part of the evidence.” Although these
instructions were not consistent, in the final instructions the court also
told the jury that the preliminary instructions “still apply unless
contradicted by these instructions.” Thus, the court essentially required
the jury to compare the preliminary instructions with the final instructions
and decide which set of instructions governed with respect to stipulations.
To avoid jury confusion, the superior court should have provided the jury
with final instructions that were full and complete. Nevertheless, for the
reasons discussed above, Salazar was not prejudiced by the court’s
instructions regarding stipulations.
4
STATE v. SALAZAR
Decision of the Court
¶12 Salazar has 30 days from the date of this decision to proceed,
if he wishes, with an in propria persona petition for review. On the court’s
own motion, we also grant Salazar 30 days from the date of this decision
to file an in propria persona motion for reconsideration.
:MJT
5