NOTICE: NOT FOR PUBLICATION.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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appellee
,

v.

ALFREDO HERRERA
, Appellant

.
No. 1 CA

- CR 12

- 0732

Appeal from the Superior Court in Maricopa County

No. CR2007

- 007522

- 003 The Honorable Karen L. O’Connor
, Judge

AFFIRMED AS MODIFIED

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

Janelle A. McEachern
, Chandler C ounsel for Appellant

MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.STATE v. HERRERA Decision of the Court

2 T H O M P S O N , Judge:

¶1 Alfredo Herrera (defendant) tim ely appeals his convictions and sentences for one count of first degree murder, five counts of attempted first degree murder, five counts of aggravated assault, one count of drive

- by shooting, one count of unlawful flight from law enforcement vehicle , one count of disorderly conduct
, and one count of misconduct involving wea pons

. Pursuant to Anders v. California , 386 U.S. 738 (1967), and State v. Leon , 104 Ariz. 29 7, 451 P.2d 878 (1969), counsel for defendant has advised us that, after searching the entire record, she has been unable to discover any arguabl e questions of law and has filed a brief requesting this court to conduct an Anders review of the record

. Defendant has been afforded an opportuntity to file a supplemental brief in propia persona , and he has not done so.

FACTS AND PROCEDURAL HISTORY

¶2 On April 1, 2005, Pho enix P olice Department officers

r esponded to a 911 call at defendant’s home in Phoenix. Defendant informed the officers that he was standi ng outside by his white Mercedes when three vehicles , a gray or black SUV and two Nissan type vehicles, drove by and fired gun shots at his house. The officers noticed several bullet stri kes to the outside of the house and window, and through the rear window of d efendant’s vehicle

. D efendant admitted that he had used a gun to fire back at the vehicles and tha t he was a prohibited possessor, but the officers were unable to locate a gun. Defendant became increasingly agitated, and the officers left after determining defendant

w ould not be cooperative in the investigation. Officers returned to defendant’s ho me later that evening after receiving a call that one of the vehicles suspected to be in volved in the shooting repeatedly drove by the house. While there , officers noticed a gray vehicle slowly drive by defendant’s house . The officers uns uccessfully atte mpted to stop the vehicle , but were able to secure its license plate number

. ¶3 The following evening, J

. G. was driving his white Ford Taurus in defendant’s neighborhood trying to find the location of a party with his two cousins, C .V. and Jonathan, and three friends, G .S. , Y .R. , and L .Z

. Defendant an d multiple accomplices were at d efendant’s house trying to guard it in case the shooters from the previous night returne d

. Defendant carried a 9 mm gun and a walkie

- talkie, and was wearing a bullet

- proof v est. His accomplices also carried walkie

- talkies and weapons, including a black assault rifle and an AK

- 47

. After d efendant

n oticed J.G.’s vehicle drive by his house three times , he and fourSTATE v. HERRERA Decision of the Court

3 accomplices jumped into defendant’s Mercedes and chased after i t

. When J.G. stopped his vehicle at a stop sign, defendant drove up alongside J.G. ’s car and stopped next to him. D efendant jumped out of his car and stated
,

“ Why you all keep passing by my house ? ” Defendant and his accomplices then immediately began sh ooting at J.G. and the other victims.

¶4 Upon hearing the gunshots, J.G. quickly sped off through the neighborhood “trying to get away.” Defendant chased after J.G. ’s vehicle, stating
, “I got more rounds .” J.G. called 911 as he drove, while defendant swerved in and out of traffic trying to catch up to J.G. ’s vehicle. When defendant caught up with the J.G. ’s vehicle, he fired additional gunshots at the car

. J.G. estimated that at least twenty to thirty rounds

w ere shot at his vehicle. Although J.G. could not see the driver, he was later able to identify two of defendant’s accomplices, one of whom was wearing a blue Dodg er s ’ h at

. ¶5 While J.G. slowed his car to change directions, L.Z. jumped from the vehicle and r an to a nearby house for assistance. J.G. continued driving towards a hospital until he was eventually able to get emergency vehicles to stop and render assistan ce

. As a result of the shootings, J.G. sustained gunshot injuries to his face, arm, and back ; Y.R. sustained injuries to her spinal cord that left her paralyzed from the waist down; C.V. sustained injuries to his knee and hand ; L.Z. sustain ed injuries to her fingers and legs; G.S. sustained a head injury; and Jonathan died from his gunshot injuri e s. All of the victims feared for their lives during the inciden t

. ¶6 During the chase, an off

- duty Phoenix p olice officer heard approximately eight to ten gunshots and observed what appeared to be gunshots coming from a Mercedes and striking a white vehic le traveling ahead of it. Another officer also observed defendant’s white Mercedes travelling at a high rate of speed. The officer followed defendant’s vehicle
, watching as it switched lanes bac k and forth
, before losing sight of the vehicle when it abrupt ly turn ed onto an access road

. A police helicopter assist ed the officers and continued to follow d efendant’s vehicle. Defendant’s accomplices eventually jumped out of the vehicle and fled. D efendant drove his vehicle into the driveway of a house a nd then disappeared from view in the surrounding vegetation

. Officers found defedant’s accomplices hiding in a nearby yard and under a truck, whereby they were t aken into custody and arrested. Officers also found an empty gun holster on the driver’s side floorboard of d efendant’s vehicle ; and collected two weapons , one of w hich was a black as saultSTATE v. HERRERA Decision of the Court

4 riffle; shell casings ; a blue Dodger s ’ hat ; walkie

- talkies; and a bullet proof vest, all in the vic inity of defendant’s abandoned Mercedes

. D efendant

was subsequently arrested on August 30 , 200 7

. ¶7 After a jury trial, the jury found defendant guilty of one count of first murder , a c lass 1 dangerous felony (count 1) ; five c ount s of attempted first degree murder , class 2 dangerous felonies (counts 2

- 6) ; fiv e counts of aggravated assault
, c lass 3 dangerous felonies (counts 7

- 11) ; one count of drive

- by

- shooting, a c lass 2 dangerous felony (count 12) ; one count of unlawful flight from a law enforcem ent vehicle, a c lass 5 felony (count 13) ; one count of disord erly conduct, a c lass 6 dangerous felony (count 15) ; and one count of mi sconduct involving a weapon, a

c lass 4 felony (count 17)

. The jury also found an aggravating circumstance
as to count one: d efendant’s prior conviction for a serious offense

. Additional l y, the court found that defendant had four prior felony convictions when he committed the offenses

. The trial court sentenced defendant to a term of natural life on count 1 ; maximum, consecutive twenty

- one year prison terms on counts 2 through 6 ; maximum,
concurrent fifteen year prison terms on counts 7 through 11 ; a maximum,
concurrent twenty

- one year prison term on count 12; a presumptive, concurrent five year prison term on count 13; a maximum, concurrent three year prison term on count 15; a nd a presumptive, concurrent ten year prison term on count 17

. Defendant received 1,913 days prese ntence incarceration credit on each count, with the exception of counts 2 through 6.

DISCUSSION

¶8 After reviewing the entire record for reversible error, we fi nd none

. See Leon , 104 Ariz. at 300, 451 P.2d at 881

. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentences imposed were within the statutory limits. Defendant was present at all critical stages of the proceedings and was represented by counsel. Furthermore, based on our review of the record before us, substantial evidence supports the jury's verdicts.

¶9 We have, however, noted an error in the sentencing minute entry. The sentencing minute entry ordered defendant to “submit to DNA testing for law enfo rcement identification purposes and pay the applicable fee for the cost of that testing in accordance with [Arizona Revised Statutes (“A.R.S.”) secti on] 13

– 610 [( Supp. 2013 )] .” However, A.R.S. § 13

– 610 does not authorize the trial court to order a convicted per son to pay for the cost of DNA testing. State v. Reyes , 232 Ariz. 468, 472, ¶ 14, 307STATE v. HERRERA Decision of the Court

5 P.3d 35, 39 (App. 2013). Therefore, we vacate that portion of the sentencing minute entry whi ch requires defendant to do so. Accordingly, we affirm defendant 's convictions and sentences as modified.

¶10 Pursuant to State v. Shattuck , 140 Ariz. 582, 584

- 85, 684 P.2d 154, 156

- 57 (1984), defendant’s counsel’s obligations in this appeal are at an end. Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme C ourt, counsel must only inform d efendant of the status of this appea l and defendant's future options. Id. D efendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review.