State v. Pena
| Decision Date | 21 April 2014 |
| Docket Number | No. 2 CA-CR 2013-0324,2 CA-CR 2013-0324 |
| Parties | THE STATE OF ARIZONA, Appellee, v. AMANDA MANUELA PENA, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Jane L. Eikleberry, Judge
AFFIRMED IN PART; MODIFIED IN PART
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jana Zinman, Assistant Attorney General, Phoenix
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Howard and Judge Miller concurred.
¶1 After a jury trial, Amanda Pena was convicted of aggravated driving under the influence of an intoxicant (DUI) with a minor present and aggravated driving with an illegal drug or its metabolite in her body with a minor present. The trial court suspended the imposition of sentence and placed her on concurrent, three-year terms of probation for both counts and imposed various fines, fees, and assessments. On appeal, Pena argues the court erred by denying her motions to suppress evidence obtained during an illegal traffic stop and an incriminating statement she made before receiving Miranda1 warnings. She also argues the court erred at sentencing by ordering her to pay attorney fees, a related assessment, a surcharge, and a probation assessment and by designating her convictions as felonies. For the reasons that follow, we modify the surcharge levied against Pena but otherwise affirm her convictions and sentences.
¶2 "[W]e view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the jury's verdicts." State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In July 2011, Arizona Department of Public Safety Officer Saleem Abdullah initiated a traffic stop after he saw Pena make a lane change and a right turn at an intersection without using her turn signal.
¶3 Abdullah approached Pena's sport utility vehicle (SUV), which had three other occupants, including a child under fifteen years of age, and immediately "detect[ed] the distinct odor of marijuana" coming from inside the vehicle. After Pena handed her driver's license to Abdullah, he asked her to step out of the vehicle and asked whether she "had been using marijuana recently." Pena answered that "she had [smoked marijuana] at the park approximately a half an hour [before]." Abdullah conducted several field-sobriety tests, placed Pena under arrest, and advised her of her rights pursuant to Miranda. Analysis of a blood draw taken approximately an hour and a half later showed that Pena had THC,2 a metabolite of THC, and a metabolite of cocaine in her system.
¶4 Pena was charged with aggravated driving under the influence with a minor present and aggravated driving with an illegal drug or its metabolite in her body with a minor present. Before trial, Pena filed a motion to suppress the evidence obtained after the stop, arguing the stop had been illegal because her failure to signal did not constitute a traffic violation. She also moved to suppress the statement she had made while getting out of her SUV because Abdullah had not yet given Miranda warnings. The trial court denied both motions.
¶5 The jury found Pena guilty of both offenses. At sentencing, Pena requested that the trial court defer designating her class-six felony convictions as felonies pursuant to A.R.S. § 13-604(A) and provide her with the "opportunity to earn misdemeanors." The state argued "the specific nature and circumstances of the crime and the history and character of [Pena] . . . [gave] no support for waiting to determine whether to leave the offenses as designated felonies." The court found that felony designations were "not unduly harsh" and designated the offenses as felonies. It then sentenced Pena as described above, reaffirmed a prior $400 assessment for attorney fees, and imposed over $4,800 in other fines and assessments. "[D]ue to her financial situation and the fines with DUI," Pena asked the court to "waive the surchargesor reduce the attorney fees" that it had imposed. The court denied her request. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶6 Pena argues that the trial court erred in denying her motions to suppress the evidence obtained during the traffic stop and the statement she made before receiving Miranda warnings. We review the denial of a motion to suppress for an abuse of discretion. State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007). In doing so, "we view the facts in the light most favorable to upholding the trial court's ruling and consider only the evidence presented at the suppression hearing." State v. Zinsmeyer, 222 Ariz. 612, ¶ 4, 218 P.3d 1069, 1074 (App. 2009), overruled on other grounds by State v. Bonfiglio, 231 Ariz. 371, ¶ 15, 295 P.3d 948, 951 (2013). However, we review the court's ultimate legal conclusions de novo. Gay, 214 Ariz. 214, ¶ 30, 150 P.3d at 796.
¶7 Pena first argues "the trial court erred by denying [her] motion to suppress all evidence because the stop was illegal." "'An investigatory stop of a motor vehicle constitutes a seizure under the Fourth Amendment.'" State v. Livingston, 206 Ariz. 145, ¶ 9, 75 P.3d 1103, 1105 (App. 2003), quoting State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). But because it is a less intrusive form of detention, "[a] police officer need only have reasonable suspicion that a person is engaged in criminal activity or has violated a traffic law to conduct a stop of a vehicle." State v. Moran, 232 Ariz. 528, ¶ 4, 307 P.3d 95, 98 (App. 2013). Reasonable suspicion is "'a particularized and objective basis for suspecting the particular person stopped of criminal activity.'" Gonzalez-Gutierrez, 187 Ariz. at 118, 927 P.2d at 778, quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981). As long as reasonable suspicion exists, "the subjective motives of an officer do not invalidate an otherwise lawful traffic stop." Livingston, 206 Ariz. 145, ¶ 13, 75 P.3d at 1106.
¶8 Abdullah testified that he had initiated a traffic stop because Pena failed to use her turn signal when she moved from theright lane, into a right-hand turn bay, and then executed a right turn.3 Section 28-754(A), A.R.S., states:
A person shall not turn a vehicle at an intersection unless the vehicle is in proper position on the roadway . . . or otherwise turn a vehicle from a direct course or move right or left on a roadway unless and until the movement can be made with reasonable safety. A person shall not so turn any vehicle without giving an appropriate signal in the manner provided by this article in the event any other traffic may be affected by the movement.
¶9 This court interpreted the "may be affected" portion of § 28-754 in State v. Starr, 222 Ariz. 65, 213 P.3d 214 (App. 2009). In that case, an officer had observed the defendant's vehicle move from the left lane to the right lane on Interstate 40 without signaling. Id. ¶ 6. As he did so, the defendant "passed an on-ramp in which a large commercial truck was merging onto Interstate 40." Id. The defendant moved to suppress evidence seized during the ensuing traffic stop, arguing the "stop was unlawful because there was no traffic violation" pursuant to § 28-754(A). Starr, 222 Ariz. 65, ¶¶ 2, 13, 213 P.3d at 216, 218. The trial court denied the motion. Id. ¶ 2.
¶10 On review, this court affirmed. Id. ¶ 1. We acknowledged that "§ 28-754 does not require drivers to signal every time they make a turn." Starr, 222 Ariz. 65, ¶ 20, 213 P.3d at 219-20. But, we also noted:
A driver who makes an unsignaled turn or move deprives other drivers of a warning that a change of course is about to take place. To the extent that information enters into the decision-making calculus of a nearby driver, that driver "may be affected." . . . [I]t is enough that the move may influence the factors a driver would consider in order to drive safely.
Id. ¶ 24. We further noted that the commercial truck driver would have considered the presence of traffic in the right lane as he merged onto the highway, but the officer had testified that the defendant's failure to signal would have suggested to the truck driver that the defendant planned to remain in the left lane. Id. ¶ 25. Thus, the failure to signal in Starr deprived the truck driver of information that may have affected the driver's course. Id. We therefore concluded that "[t]he presence of this merging vehicle on the on-ramp was a specific, articulable fact that satisfied the 'may be affected' requirement of . . . § 28-754(A)." Starr, 222 Ariz. 65, ¶ 25, 213 P.3d at 221.
¶11 Here, Pena argues "[t]here was no specific articulable fact" to support the trial court's finding of reasonable suspicion because "Abdullah could not describe where the other vehicles were or how they may have been affected." We disagree. During the suppression hearing, Abdullah testified that traffic had been "moderate," meaning, traffic was not "jampacked, rush hour type conditions or anything like that, but it wasn't a sporadic one car on the road," and he noted that there had been "moderate traffic as you would see flowing through a light." He explained that vehicles had been stopped at the red light as Pena approached the intersection, while others—including Abdullah—were traveling behind her SUV. Abdullah also stated that on previous occasions, he "ha[d] observed vehicles go straight [through an intersection] from a right turn lane"when they had failed to signal a right turn. To be "ca...
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