NOTICE: NOT FOR PUBLICATION.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.
MANUEL HERNANDEZ, Appellant.
No. 1 CA-CR 15-0542
FILED 11-3-2016
Appeal from the Superior Court in Maricopa County
No. CR 1998-005888
The Honorable Stephen A. Gerst, Judge (Retired)
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. HERNANDEZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.
O R O Z C O, Judge:
¶1 Manuel Hernandez appeals his convictions and the resulting
sentence for possession of dangerous drugs for sale, a class two felony;
transportation of dangerous drugs, a class two felony; and misconduct
involving weapons, a class four felony. Pursuant to Anders v. California, 386
U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969), Hernandez’s counsel
filed a brief indicating that he searched the entire record, found no arguable
question of law that was not frivolous, and asked this court to review the
record for fundamental error. Hernandez was afforded the opportunity to
file a supplemental brief in propria persona, but he has not done so.
¶2 Our obligation in this appeal is to review “the entire record
for reversible error.” State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999).
Finding no reversible error, we affirm Hernandez’s convictions and
sentences.
FACTS AND PROCEDURAL HISTORY
¶3 On or about April 10, 1998, an extended undercover operation
culminated in an afternoon meeting between Hernandez, two other
individuals, and two undercover detectives, A. and M., for the sale of five
to ten pounds of methamphetamine. One of the individuals introduced A.
to Hernandez, who was sitting in a gold Cadillac with his two-year-old son.
After the drug was sampled and money displayed, the parties met to
complete the transaction at a different location. Hernandez showed a zip-
lock freezer bag he represented as containing one pound of
methamphetamine and explained the seller wanted to get some money
before he could supply the remaining four to nine pounds. Some
negotiation ensued, after which A. agreed to buy the one pound Hernandez
offered. Phoenix Police Department arrest team moved in, arresting
Hernandez and the two others. Under the driver’s seat, where Hernandez
was sitting, the police recovered one pound (450g) of methamphetamine
and a .38 caliber semi-automatic handgun.
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STATE v. HERNANDEZ
Decision of the Court
¶4 Hernandez was indicted with: (1) offer to sell dangerous
drugs, a class two dangerous felony, a count later dismissed by the State;
(2) possession of dangerous drugs for sale, a class two felony; (3)
transportation of dangerous drugs, a class two felony; and (4) misconduct
involving weapons, a class four felony.
¶5 Hernandez failed to appear at trial in August 2001 and the trial
was held in absentia. A bench warrant was issued. Thirteen years later, in
2014, Hernandez was apprehended on the warrant.
¶6 At trial,1 A. identified the person on the certified booking
photograph as the man who he negotiated with over the sale and ultimate
purchase of methamphetamine. At the time of the arrest, officers
discovered a handgun Hernandez admitted belonged to him.
¶7 M. testified that she advised Hernandez of his rights pursuant
to Miranda v. Arizona, 384 U.S. 436 (1966) and interviewed Hernandez, who
asserted he carried the handgun for protection. He admitted he knew the
other two individuals, but not A. Hernandez claimed that A. tossed the
methamphetamine onto his lap.
¶8 A criminalist testified that he conducted drug tests and
confirmed the recovered substance was 450 grams of methamphetamine.
The following items were admitted into evidence: a redacted and certified
booking photograph of Hernandez taken on April 10, 1998, the day he was
arrested; a plastic bag containing 450 grams of methamphetamine; a plastic
bag containing a .38 caliber handgun and nineteen bullets; and a plastic bag
containing one black electronic measuring scale.
¶9 The jury found Hernandez guilty of: possession of
dangerous drugs for sale; transportation of dangerous drugs; and
misconduct involving weapons.
¶10 On July 22, 2015, Hernandez was sentenced to imprisonment
for seven years for possession of dangerous drugs for sale, five years for
transportation of dangerous drugs, and two and a half years for misconduct
involving weapons; all three sentences to run concurrently. Hernandez was
1 Because no transcript was available from the jury trial in 2001, this
court ordered a testimony reconstruction pursuant to Rule of Criminal
Procedure (Rule) 31.8.f. Hernandez had the opportunity to dispute any
omissions or misstatements, but he did not raise any controversy or
question as to the form and content of the reconstructed record. See id.
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STATE v. HERNANDEZ
Decision of the Court
fined $24,000, forfeited his weapon, and was placed on community
supervision pursuant to Arizona Revised Statutes (A.R.S.) § 13-603(I).
¶11 Hernandez timely appealed. We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, and A.R.S. sections 12-
120.21.A.1, 13-4031, and -4033.A.1 (West 2016).2
DISCUSSION
¶12 “We view the facts and all reasonable inferences therefrom in
the light most favorable to sustaining the convictions.” State v. Powers, 200
Ariz. 123, 124, ¶ 2 (App. 2001). A reversal of a conviction based on
insufficiency of evidence requires a clear showing that there was not
sufficient evidence to support the jury’s conclusion under any hypothesis
whatsoever. State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004).
¶13 The State charged Hernandez with possession of dangerous
drugs for sale. Under A.R.S. § 13-3407.A.2, “[a] person shall not knowingly
[p]ossess a dangerous drug for sale.” Knowingly “means, with respect to
conduct or to a circumstance described by a statute defining an offense, that
a person is aware or believes that the person’s conduct is of that nature or
that the circumstance exists. It does not require any knowledge of the
unlawfulness of the act or omission.” A.R.S. § 13-105.10.(b). Possession
“means a voluntary act if the defendant knowingly exercised dominion or
control over property.” A.R.S. § 13-105.34. Sale means “an exchange for
anything of value or advantage, present or prospective.” A.R.S. § 13-
3401.32. Methamphetamine is a dangerous drug. A.R.S. § 13-
3401.6.(c)(xxxviii).
¶14 At trial, the State presented evidence identifying Hernandez
as the man who sold one pound of methamphetamine to A. by A.’s
identification of a certified booking photograph taken on the day of
Hernandez’s arrest. A. further testified he negotiated the sale of
methamphetamine with Hernandez, who showed him what was
represented as methamphetamine. One pound of methamphetamine was
found under the seat of the car where Hernandez was sitting. A criminalist
confirmed the drugs recovered as methamphetamine in a laboratory test.
Hernandez agreed to accept money for the one pound of
methamphetamine.
2 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
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STATE v. HERNANDEZ
Decision of the Court
¶15 Hernandez was also charged with transportation of
dangerous drugs. Under A.R.S. § 13-3407.A.7, “[a] person shall not
knowingly [t]ransport for sale . . . a dangerous drug.” Hernandez had the
methamphetamine in his car and delivered it to A., in exchange for money.
¶16 Hernandez was further charged with misconduct involving
weapons, which requires “knowingly [] [c]arrying a deadly weapon . . .
concealed on his person or within his immediate control in or on a means
of transportation [] [i]n the furtherance of . . . any other felony offense.”
A.R.S. § 13-3102.A.1.(a). A. testified the police found a .38 caliber semi-
automatic handgun and two magazines containing nineteen bullets under
Hernandez’s seat during arrest. Additionally, M. testified Hernandez told
her he carried the handgun for protection.
¶17 Based on the evidence, we find there was sufficient evidence
to support the jury’s verdicts.
¶18 The trial court sentenced Hernandez and gave Hernandez
credit for 395 days of presentence incarceration. Because the trial court
properly determined the term of imprisonment pursuant to A.R.S. §§ 13-
701.C and -702.A.1 (West 1993) and it provided the correct amount of
presentence incarceration credit, this was a legal sentence.
CONCLUSION
¶19 We have read and considered counsel’s brief. We have
carefully searched the entire appellate record for reversible error. See State
v. Clark, 196 Ariz. 530, 541, ¶ 49 (App. 1999). All of the proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure.
We find substantial evidence supported the guilty verdicts. Hernandez
was represented by counsel at all critical stages of the proceedings. At
sentencing, Hernandez and his counsel were given an opportunity to speak,
and the court imposed a legal sentence. For the foregoing reasons, we
affirm Hernandez’s convictions and sentences.
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STATE v. HERNANDEZ
Decision of the Court
¶20 Counsel’s obligations pertaining to Hernandez’s
representation in this appeal have ended. See State v. Shattuck, 140 Ariz. 582,
584 (1984). Counsel needs to do nothing more than inform Hernandez 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. See id. at 585. Hernandez shall have thirty days from
the date of this decision to proceed, if he so 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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