State v. Giron

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

RUBEN GIRON, Appellant.

No. 1 CA-CR 19-0159
FILED 01-07-2020

Appeal from the Superior Court in Maricopa County
No. CR 2017-151995-001 DT
The Honorable Gregory Como, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
 STATE v. GIRON
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.

P E R K I N S, Judge:

¶1 Ruben Giron timely filed this appeal in accordance with
Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969),
following his conviction for possession of drug paraphernalia, a class 6
felony. Giron’s counsel has searched the record on appeal and found no
arguable question of law that is not frivolous. See Anders, 386 U.S. at 744;
State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). Giron was given an
opportunity to file a supplemental brief and did not do so. Our obligation
is to review the entire record for reversible error, id., viewing the evidence
in the light most favorable to sustaining the convictions and resolving all
reasonable inferences against Giron. State v. Guerra, 161 Ariz. 289, 293
(1989). Having reviewed the entire record, we find no reversible error and
affirm.

¶2 In the early morning hours of November 10, 2017, Officers
Daley and Aguirre were on patrol when they pulled into the parking lot of
a Pete’s Fish and Chips (which was closed at the time). The officers found
approximately four people, including Giron, sitting at a table on the patio.
Giron began to walk away from the table as the officers arrived, and he
appeared to be concealing something in his right hand. The officers asked
for his attention and he complied. When the officers asked him what was
in his hand, Giron responded that it was a “rig,” which Officer Daley
testified was street slang for a syringe. Giron opened his hand and
displayed two uncapped syringes, which the officers recovered and later
impounded. The officers also found a black tar-like substance on the table
near Giron, which they also recovered and impounded. Officer Daley
believed the substance to be heroin, and later tested it himself using a device
called a “TruNarc.”

¶3 After recovering these items, Officer Daley took Giron into
custody, read him his Miranda rights, and asked him if he understood
them. After responding that he understood his Miranda rights, Giron
admitted that the substance on the table was his heroin and that he was
about to use it before the officers arrived.

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 STATE v. GIRON
Decision of the Court

¶4 The state filed an information charging Giron with one count
of possession or use of narcotic drugs (Count I), a class 4 felony, and one
count of possession of drug paraphernalia (Count II), a class 6 felony. The
state also alleged historical and non-historical prior felony convictions;
aggravating circumstances; and that Giron was ineligible for mandatory
probation due to prior drug convictions.

¶5 At trial, the state called as witnesses Officer Daley, Officer
Aguirre, and Michael Osvold, the Phoenix crime lab employee who tested
the substance the officers recovered from the table. Mr. Osvold explained
the methodology he used to test the substance and testified that it tested
positive for heroin. The defense called no witnesses and Giron did not
testify. The jury found Giron guilty of Count II, but could not reach a verdict
on Count I (Giron later entered into a plea agreement on this count).

¶6 Before sentencing, Giron stipulated to the existence of 2
historical and 2 non-historical prior felony convictions. The trial court
allowed Giron to speak at sentencing and he did so. The trial court
sentenced Giron to a mitigated prison term of 2.5 years with credit for 45
days of presentence incarceration on Count II.

¶7 The record reflects that all proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure. See State v.
Gomez, 27 Ariz. App. 248, 251 (App. 1976) (citing Ariz. R. Crim. P. 1.2). Giron
was present and represented by counsel at all stages of the proceeding. The
record reveals sufficient evidence from which the jury could determine,
beyond a reasonable doubt, that Giron is guilty of possession of drug
paraphernalia. At sentencing, Giron had the opportunity to speak and the
court stated on the record the factors it considered in imposing the sentence.
See Ariz. R. Crim. P. 26.9, 26.10. The trial court imposed a sentence within
the statutory limits. See A.R.S. §§ 13-701 to -709.

¶8 We have reviewed the entire record for arguable issues of law
and find none, and therefore affirm Giron’s conviction and resulting
sentence. Leon, 104 Ariz. at 300–01.

¶9 Defense counsel’s obligations pertaining to Giron’s
representation in this appeal have ended. Counsel need do no more than
inform Giron 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. See State v. Shattuck, 140
Ariz. 582, 584–85 (1984). On the court’s own motion, Giron has thirty days
from the date of this decision to proceed, if he wishes, with a pro per motion

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 STATE v. GIRON
Decision of the Court

for reconsideration. Additionally, Giron has thirty days from the date of
this decision to proceed, if he wishes, with a pro per petition for review.

AMY M. WOOD • Clerk of the Court
FILED: JT

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