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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHNNY L. MENDIVIL, Appellant.

No. 1 CA-CR 17-0272

Appeal from the Superior Court in Maricopa County

No. CR2016-115393-002

The Honorable Joseph P. Mikitish, Judge

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

FILED 2-27-2018
STATE v. MENDIVIL

Decision of the Court

2

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

J O H N S E N, Judge:

¶1 Johnny L. Mendivil 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 convictions of criminal trespass and possession of 

drug paraphernalia, each a Class 6 felony, and possession of a dangerous 

drug, a Class 4 felony. Mendivil's counsel has searched the record and 

found no arguable question of law that is not frivolous. See Smith v. Robbins, 

528 U.S. 259 (2000); Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530 (App. 

1999). Mendivil was given the opportunity to file a supplemental brief but 

did not do so. Counsel now asks this court to search the record for 

fundamental error. After reviewing the entire record, we affirm Mendivil's 

convictions and sentences.

FACTS AND PROCEDURAL BACKGROUND

¶2 Phoenix police responded to a call concerning a possible 

trespass of a vacant downtown home.

1 A barbed-wire fence surrounded 

the property, but it had a hole in it near a "no trespassing" sign. Officers 

entered through the hole in the fence and heard voices coming from a side 

house on the property. When one of the officers looked inside, he saw 

Mendivil and a woman sitting on a mattress with a pipe between them. The 

officer ordered both out of the house. Once outside, Mendivil admitted he 

had been smoking methamphetamine, and the officers arrested him, then 

searched him and found several bags of methamphetamine. After a threeday trial, the jury convicted Mendivil of first-degree criminal trespassing, 

possession of dangerous drugs and possession of drug paraphernalia. The 

jury found no aggravators present, and the State was unable to prove 

Mendivil had any prior convictions. Although the superior court 

nevertheless stated it "consider[ed] [Mendivil's] prior convictions" in 

sentencing, it did not impose any sentence longer than the presumptive in 

 

1 Upon review, we view the facts in the light most favorable to 

sustaining the jury's verdicts and resolve all inferences against Mendivil. 

State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
STATE v. MENDIVIL

Decision of the Court

3

imposing three concurrent terms of incarceration, the longest of which was 

2.5 years, with 78 days' presentence credit.

¶3 Mendivil timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, and Arizona Revised 

Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018), 13-4031 (2018) and -4033 

(2018).2

DISCUSSION

¶4 The record reflects Mendivil received a fair trial. He was 

represented by counsel at all stages of the proceedings against him and was 

present at all critical stages. The court held appropriate pretrial hearings.

¶5 The court held a suppression hearing in which it considered 

Mendivil's argument that police searched him before they had probable 

cause to arrest him for trespass. The court did not abuse its discretion in 

concluding that Mendivil had no reasonable expectation of privacy on the 

property, that the police had reasonable suspicion to investigate the 

reported trespass and that the investigation yielded evidence sufficient to 

give them probable cause to arrest Mendivil. See Katz v. United States, 389 

U.S. 347, 361 (1967) (Harlan, J., concurring). The drug evidence therefore 

was obtained from a search incident to a valid arrest and admissible under 

that exception to the warrant requirement. See State v. Baker, 26 Ariz. App. 

255, 258 (1976).

¶6 The court did not conduct a voluntariness hearing; however, 

the record did not suggest a question about the voluntariness of Mendivil's

statements to police. See State v. Smith, 114 Ariz. 415, 419 (1977); State v. 

Finn, 111 Ariz. 271, 275 (1974).

¶7 The State presented both direct and circumstantial evidence 

sufficient to allow the jury to convict. The jury was properly comprised of 

eight members. The court properly instructed the jury on the elements of 

the charges, the State's burden of proof and the necessity of a unanimous 

verdict. The jury returned a unanimous verdict, which it affirmed in open 

court. The court received and considered a presentence report, addressed 

its contents during the sentencing hearing and imposed legal sentences for 

the crimes of which Mendivil was convicted.

 

2 Absent material revision after the date of an alleged offense, we cite 

a statute's current version.
STATE v. MENDIVIL

Decision of the Court

4

CONCLUSION

¶8 We have reviewed the entire record for reversible error and 

find none, and therefore affirm the convictions and resulting sentences. See 

Leon, 104 Ariz. at 300.

¶9 Defense counsel's obligations pertaining to Mendivil's

representation in this appeal have ended. Counsel need do no more than 

inform Mendivil 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, Mendivil has 30 days 

from the date of this decision to proceed, if he wishes, with a pro per motion 

for reconsideration. Mendivil has 30 days from the date of this decision to 

proceed, if he wishes, with a pro per petition for review.