State v. Vega

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GERARDO VEGA, JR., Appellant.

No. 1 CA-CR 16-0206
FILED 1-26-2017

Appeal from the Superior Court in Maricopa County
No. CR 2015-114464-001
The Honorable David V. Seyer, 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 Kevin D. Heade
Counsel for Appellant
 STATE v. VEGA
Decision of the Court

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.

D O W N I E, Judge:

¶1 Gerardo Vega, Jr., appeals his convictions and sentences for
two counts of aggravated driving or actual physical control while under the
influence of intoxicating liquor or drugs and one count of possession or use
of marijuana, in violation of Arizona Revised Statutes (“A.R.S.”) sections
28-1381(A)(1), (A)(3), -1383(A)(1), and 13-3405(A)(1). Pursuant to Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense
counsel has searched the record, found no arguable question of law, and
asked that we review the record for reversible error. See State v. Richardson, 175 Ariz. 336, 339 (App. 1993). Defendant was given the opportunity to file
a supplemental brief in propria persona, but he has not done so. For the
following reasons, we affirm Vega’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶2 A police officer stopped Vega for speeding around 8:30 a.m.
In response to a question by the officer, Vega admitted that he had “weed”
in the vehicle. The officer could “smell the odor of marijuana” and saw that
Vega’s eyes were bloodshot and watery. When asked for his driver’s
license, Vega stated he did not have one. He admitted using marijuana that
morning at approximately 6:30. After Vega performed field sobriety tests,
he was arrested.

¶3 Vega was indicted on two counts of aggravated driving or
actual physical control while under the influence of intoxicating liquor or
drugs, one count of possession or use of dangerous drugs, and one count of
possession or use of marijuana. The possession or use of dangerous drugs
charge was dismissed, and trial proceeded on the remaining three counts.
At the conclusion of the State’s case-in-chief, Vega moved for a judgment
of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure,
which the court denied. The defense rested without presenting witnesses.
The jury found Vega guilty of all three charges.

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Decision of the Court

¶4 Vega stipulated to having two prior felony convictions. The
court sentenced him to 10 years for each driving under the influence charge
and 3.75 years for possession or use of marijuana, with the sentences to run
concurrently. Vega received 51 days of presentence incarceration credit.

¶5 This Court has jurisdiction over Vega’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S.
§§ 13-4031 and -4033(A)(1).

DISCUSSION

¶6 We have read and considered the briefs submitted by Vega’s
counsel and have reviewed the entire record. We find no reversible error.
All of the proceedings were conducted in compliance with the Arizona
Rules of Criminal Procedure, and the sentences imposed were within the
statutory range. Vega was present at all critical phases of the proceedings,
and he was represented by counsel. The jury was properly impaneled and
instructed. The jury instructions were consistent with the offenses charged.
The record reflects no irregularity in the deliberation process.

I. Rule 20 Motion

¶7 A judgment of acquittal is appropriate only when there is “no
substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20.
Substantial evidence is such proof that “reasonable persons could accept as
adequate and sufficient to support a conclusion of defendant’s guilt beyond
a reasonable doubt.” State v. Mathers, 165 Ariz. 64, 67 (1990). “Reversible
error based on insufficiency of the evidence occurs only where there is a
complete absence of probative facts to support the conviction.” State v. Soto-
Fong, 187 Ariz. 186, 200 (1996).

¶8 The State presented substantial evidence of guilt. Regarding
the first count of aggravated driving under the influence, the State was
required to prove: (1) Vega drove a vehicle in this state; (2) Vega was under
the influence of any drug at the time of driving and as a result was impaired
to the slightest degree; (3) Vega’s driver’s license was suspended or revoked
at the time he was driving; and (4) Vega knew or should have known his
license was suspended or revoked at the time of driving. A.R.S.
§§ 28-1381(A)(1); -1383(A)(1); -1383(C).

¶9 The officer testified about numerous indicia of impairment he
observed at the time of the traffic stop. In addition to the physical signs of
impairment discussed supra, field sobriety tests indicated Vega was
impaired. Vega admitted smoking marijuana approximately two hours

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Decision of the Court

before he was stopped. He also admitted knowing that his driver’s license
had been suspended. A Motor Vehicle Division employee testified that
Vega’s license was suspended before the date of the traffic stop and that
seven letters were sent to his address of record notifying him of his license
suspension or revocation.

¶10 The second count of aggravated driving while intoxicated
required the State to prove that Vega drove with “any drug defined in
§ 13-3401 or its metabolite in [his] body” while his license was suspended.1
A.R.S. §§ 28-1381(A)(3); -1383(A)(1). Trial evidence established that Vega’s
blood test was positive for cannabinoids which a toxicologist testified was
“basically marijuana.”

¶11 The possession or use of marijuana count required the State
to prove that Vega knowingly possessed or used marijuana. A.R.S.
§ 13-3405(A)(1). The officer testified that Vega confessed to having “weed”
in his vehicle. The officer searched the vehicle and found a container with
a substance he immediately recognized as marijuana. A test of the
substance confirmed it was in fact marijuana.

CONCLUSION

¶12 We affirm Vega’s convictions and sentences. Counsel’s
obligations pertaining to Vega’s representation in this appeal have ended.
Counsel need do nothing more than inform Vega of the status of the appeal
and his future options, unless counsel’s review reveals an issue appropriate
for submission to the Arizona Supreme Court by petition for review. State

1 Marijuana is defined in A.R.S. § 13-3401. See A.R.S. § 13-3401(19).

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Decision of the Court

v. Shattuck, 140 Ariz. 582, 584–85 (1984). On the court’s own motion, Vega
shall have 30 days from the date of this decision to proceed, if he desires,
with an in propria persona motion for reconsideration or petition for review.

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

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