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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   FRANCISCO CONTRERAS, Appellant

                             No. 1 CA-CR 14-0529
                               FILED 11-03-2015


            Appeal from the Superior Court in La Paz County
                        No. S1500CR201200022
               The Honorable Lee Frank Jantzen, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Tucson
By Tanja K. Kelly
Counsel for Appellee

Carr Law Office, PLLC, Parker
By Sandra Carr
Counsel for Appellant
                          STATE v. CONTRERAS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Peter B. Swann joined.


J O N E S, Judge:

¶1             Francisco Contreras appeals his convictions and sentences for
one count of attempted first-degree murder and two counts of aggravated
assault, all dangerous offenses. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            In January 2012, Contreras climbed onto a truck’s running
board at a truck stop in Ehrenberg, told the driver he was going to kill him,
and, using a knife, slashed the driver’s forearm and stabbed him in the
abdomen. Contreras was charged with one count of attempted first-degree
murder and two counts of aggravated assault.

¶3             At trial, Contreras testified “they” had been after him for
years, and the driver had threatened to kill Contreras’s son. The driver
testified, however, he had never met Contreras and had not threatened him
or his son in any way. Contreras admitted to one of the responding officers
that he used methamphetamine on the weekends and had used it
“recent[ly].” Contreras also admitted on a jail intake form the day of the
stabbing that he had used methamphetamine, cocaine, and marijuana two
days prior.

¶4            Contreras was initially found incompetent to stand trial and
was committed to Yavapai County’s Restoration to Competency Program
(the Program) in May 2012. In December 2013, the Program reported
Contreras was mentally competent to proceed to trial notwithstanding
diagnoses of delusional disorder and methamphetamine abuse in sustained
remission. In April 2013, after additional Rule 11 evaluations were
completed, the trial court found Contreras was competent to stand trial.

¶5           At trial, defense counsel raised a guilty except insane defense.
The experts agreed Contreras suffered from a delusional disorder;
however, the State’s witnesses opined Contreras knew his actions were
wrongful at the time he engaged in them.




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                          STATE v. CONTRERAS
                           Decision of the Court
¶6             Defense counsel sought a directed verdict on the attempted
murder charge, but the trial court found sufficient evidence had been
presented by the State for all counts to go to the jury. The jury convicted
Contreras as charged, and the court sentenced him to slightly mitigated
concurrent prison terms of ten years for attempted murder and seven years
for each count of aggravated assault. Contreras filed a timely notice of
appeal, and we have jurisdiction pursuant to Arizona Revised Statutes
(A.R.S.) sections 12-120.21(A)(1),1 13-4031, and -4033(A)(1).

                               DISCUSSION

¶7           Contreras argues (1) the trial court deprived him of his right
to a twelve-person jury; (2) he was incompetent to stand trial; (3) his
statements at the time of his arrest were not voluntary because of his
incompetence; and (4) the absence of a Willits instruction was reversible
error. We address each argument in turn.

I.     Contreras Was Not Entitled to a Twelve-Person Jury.

¶8              Contreras argues the trial court committed reversible error in
seating an eight-member jury for a case in which a sentence of thirty years
or more was authorized by law. Compare Ariz. Const. art. 2, § 23 (“Juries in
criminal cases in which a sentence of death or imprisonment for thirty years
or more is authorized by law shall consist of twelve persons.”), and A.R.S.
§ 21-102(A) (providing for twelve-person jury where available punishment
is sentence of death or imprisonment for thirty years or more), with A.R.S.
§ 21-102(B) (providing for an eight-person jury “in any court of record of
any other criminal case”). We review de novo whether the court improperly
seated an eight-person jury. State v. Kuck, 212 Ariz. 232, 233, ¶ 8 (App. 2006)
(citing State v. Smith, 197 Ariz. 333, 335, ¶ 2 (App. 1999)).

¶9            The court ordered Contreras be tried by an eight-person jury
based upon its finding that the maximum sentence Contreras could receive,
even considering all aggravating factors, was twenty-one years because the
State had stipulated the sentences would run concurrently.2 And, the court




1     Absent material revisions from the relevant date, we cite a statute’s
current version.

2     Defense counsel argued the court should not take this into
consideration but should base the number of jurors on the maximum
sentences “added together.”


                                      3
                           STATE v. CONTRERAS
                            Decision of the Court
ultimately sentenced Contreras to concurrent prison terms, the longest of
which was ten years.

¶10            Our supreme court has held that an eight-member jury may
deliberate on offenses that expose a defendant to a sentence of thirty years
or more if, “by the time the case is submitted, a sentence of thirty years or
more is no longer ‘authorized by law.’” See State v. Soliz, 223 Ariz. 116, 119,
¶ 13 (2009) (citing Ariz. Const. art. 2, § 23). In Soliz, the court determined
the State “effectively waived its ability to obtain a sentence of thirty years
or more” by failing to request a jury of twelve persons. Id. The court also
found the trial court “affirmed this by failing to empanel a jury of twelve.”
Id. at 120, ¶ 16. Where the State fails to request a twelve-person jury and
the court does not empanel a twelve-person jury, “[a]s long as a lesser
sentence may legally be imposed for the crime alleged, . . . a sentence of
thirty years or more is no longer permitted and . . . the twelve-person
guarantee . . . is not triggered.” Id.

¶11            Here, just as in Soliz, the State effectively waived its ability to
obtain a sentence of thirty years or more by agreeing to an eight-person
jury, and the trial court affirmed the waiver by empaneling an eight-person
jury. Moreover, the State’s stipulation that the sentences be concurrent and
the court’s implicit agreement further support upholding the empanelment
of an eight-person jury. See State v. Thorne, 193 Ariz. 137, 138 (App. 1997)
(affirming a conviction rendered by eight-person jury under similar
circumstances). Therefore, the court did not err by empaneling a jury of
eight members.

II.    The Trial Court Did Not Err in Finding Contreras Competent to
       Stand Trial.

¶12            Contreras next argues he was not competent to stand trial.
Due process requires Arizona courts to “observe procedures adequate to
protect a defendant’s right not to be tried or convicted while incompetent
to stand trial.” Drope v. Missouri, 420 U.S. 162, 172 (1975). The test for
competency is “whether [the] defendant ‘has sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding,
and whether he has a rational as well as a factual understanding of the
proceedings against him.’” State v. Amaya-Ruiz, 166 Ariz. 152, 161-62 (1990)
(quoting Dusky v. United States, 362 U.S. 402, 402 (1960)). The competency
inquiry focuses “‘on an extremely narrow issue: whether whatever is
afflicting the defendant has so affected his present capacity that he is unable
to appreciate the nature of the proceedings or to assist his counsel in
conducting his defense.’” Id. at 162 (quoting State v. Steelman, 120 Ariz. 301,
315 (1978)). We review a competency determination for an abuse of


                                        4
                           STATE v. CONTRERAS
                            Decision of the Court
discretion. State v. Moody, 208 Ariz. 424, 444, ¶ 55 (2004) (citing State v.
Silvas, 91 Ariz. 386, 391 (1962)). We will affirm where reasonable evidence
supports the trial court’s finding that the defendant was competent. State
v. Glassel, 211 Ariz. 33, 44, ¶ 27 (2005) (citing State v. Brewer, 170 Ariz. 486,
495 (1992)).

¶13           Based upon initial Rule 11 evaluation results stating that
Contreras’s paranoia and delusions prevented him from assisting his
attorney, the trial court ordered he be committed to a competency
restoration program in May 2012. However, in December 2012, the director
of the Program concluded Contreras’s competency had been restored.
While one doctor conducting a subsequent re-examination concurred with
the director’s conclusion, others concluded Contreras remained
incompetent because his delusions regarding the stabbing prevented him
from assisting his attorney in his defense. In April 2013, after reviewing the
Rule 11 examination results, the trial court found Contreras competent to
stand trial, reasoning Contreras’s “misunderstanding about what was
going on . . . at the time the offense was committed” was typical in a
defendant raising an insanity defense but did not deprive him of
competency to stand trial.

¶14             On the first day of trial in April 2014, defense counsel moved
for another Rule 11 competency evaluation, arguing Contreras lacked the
ability to assist in his defense because “he does not understand that the only
meaningful defense is a plea of ‘guilty except insane,’ . . . [nor] that his real
options are to take the plea agreement and serve another twenty-one
month[s] or go to trial and spend over seven years in prison or the State
mental hospital.” The trial court denied the motion, reasoning Contreras’s
desire “to defend himself in a different way” than what defense counsel
believed was in his best interests did not mean he was incompetent.

¶15            The trial court did not abuse its discretion in concluding
Contreras was competent to stand trial. The court relied in part on the
opinion of the competency restoration program director that Contreras had
become competent during his six-month stay in the competency restoration
program and was able to assist his attorney in defending himself. The
director reported Contreras was able to identify and discuss the charges
against him as well as the circumstances surrounding the stabbing. The
director also reported Contreras’s “delusional ideations” had “substantially
lessened” since his arrival. At one point during his competency restoration
program, Contreras was asked about various plea agreements and stated,
“I’m going to plead ‘guilty’ because I did it.” The director’s report
constitutes sufficient evidence to sustain the court’s finding that Contreras
was competent to stand trial.


                                       5
                          STATE v. CONTRERAS
                           Decision of the Court
¶16         The trial court also relied upon a Rule 11 examination doctor
who concluded Contreras was competent to stand trial:

       [E]ven though the defendant has a delusional disorder that
       persists[,] it is not significantly different from any defendant
       who maintains his innocence even though there is
       overwhelming evidence against him. In this case the
       defendant accepts responsibility for his behavior. He does
       not realize his behavior was based on disordered thinking
       and misperception of reality secondary to a mental illness.
       However, he can clearly explain the motivations for his
       behavior and work with his attorney in that regard.

The examining doctor also noted, “When specifically queried about events
that led him to jail he was able to entertain, at least minimally, the
possibility he might have assaulted the wrong individual.” Although a
different examining doctor concluded that Contreras’s delusions regarding
the circumstances surrounding the stabbing prevented him from assisting
in his own defense, the court was free to reject this opinion in favor of
finding Contreras competent. Reasonable evidence supported this finding,
and therefore, the court did not abuse its discretion.

¶17           Contreras also argues the trial court erred in failing to order
further competency evaluations at the request of his trial counsel. The court
is required to appoint experts to conduct a competency evaluation “[i]f the
court determines that reasonable grounds for an examination exist.” Ariz.
R. Crim. P. 11.3(a). The court’s discretion in making this determination is
broad. See State v. Salazar, 128 Ariz. 461, 462 (1981) (“We have repeatedly
held that the trial court has broad discretion in determining if reasonable
grounds exist [to order a Rule 11 examination], and unless there has been
manifest abuse in this discretion, the trial court will be upheld.”) (citations
omitted). Here, the court reasoned:

       [Contreras’s] disagreement with his lawyer about whether or
       not he should take the deal is not . . . evidence that he’s
       struggling or that he’s incompetent. . . . He wants to defend
       himself in a different way.       That doesn’t mean he’s
       incompetent. It means that he wants to defend himself in a
       different way.

The court acted well within its discretion in concluding that the avowals of
Contreras’s defense counsel supplied no reasonable grounds to order
another competency evaluation. Therefore, the court did not abuse its
discretion in denying another competency evaluation request on the first


                                      6
                           STATE v. CONTRERAS
                            Decision of the Court
day of trial.

¶18             Contreras relies on Drope v. Missouri, 420 U.S. at 179-80, in
asserting the trial court was required to order a competency evaluation sua
sponte at the sentencing hearing because a note in the presentence
investigation report stated Contreras could not be interviewed because he
was making “delusional statements.” In Drope, the U.S. Supreme Court
recognized that “evidence of a defendant’s irrational behavior, his
demeanor at trial, and any prior medical opinion on competence to stand
trial are all relevant in determining whether further inquiry is required.”
Id. (citing Pate v. Robinson, 383 U.S. 375, 384-85 (1966)). Here, however,
Contreras’s demeanor during the presentence interview was not observed
by the court, and the prior medical opinions on competence as well as the
court’s observation of Contreras during trial are factors that could properly
weigh against further competency evaluation. Furthermore, the court
presided over the trial and was aware Contreras’s story about the stabbing
was “unbelievable,” but noted, “[he] stuck to that story. . . . [H]e’s told it
enough times he believes it to be true.” Therefore, the remark within the
presentence report was not sufficient grounds upon which to find error in
the court’s failure to sua sponte order another competency evaluation.

III.   Contreras’s Statements Were Voluntary.

¶19           Contreras argues that because he “was clearly actively
psychotic at the time of his arrest,” the trial court erred in finding his
statements regarding methamphetamine use were voluntary and that he
knowingly and intelligently waived his rights under Miranda v. Arizona, 384
U.S. 436, 467-68 (1966). We review the court’s ruling admitting Contreras’s
statements for an abuse of discretion based upon the evidence presented at
the voluntariness hearing, and we view the evidence presented in the light
most favorable to upholding the court’s ruling. See State v. Ellison, 213 Ariz.
116, 126, ¶ 25 (2006) (citations omitted).

¶20            Statements to law enforcement are presumed involuntary and
are admissible only upon proof from the State that they were freely and
voluntarily made and not the product of coercion. State v. Boggs, 218 Ariz.
325, 335, ¶ 44 (2008) (citing Ellison, 213 at 126, ¶ 25, and State v. Arnett, 119
Ariz. 38, 42 (1978)). “The state meets its burden ‘when the officer testifies
that the confession was obtained without threat, coercion or promises of
immunity or a lesser penalty.’” Id. (quoting State v. Jerousek, 121 Ariz. 420,
424 (1979)). To find a statement was made involuntarily, there must be
evidence of “both coercive police behavior and a causal relation between
the coercive behavior and the defendant’s overborne will.” Id. at 336, ¶ 44
(2008) (citing Colorado v. Connelly, 479 U.S. 157, 165-66 (1986)).


                                       7
                            STATE v. CONTRERAS
                             Decision of the Court
¶21             In this case, the police officers to whom Contreras made the
statements at issue both testified they did not use any force or threats
against Contreras and no promises were made. As soon as the first officer
on the scene realized Contreras’s involvement in the stabbing, the officer
handcuffed Contreras, explained he was being arrested for the stabbing,
and read him his Miranda rights. Contreras said he understood his rights
and agreed to answer questions. Although Contreras asserts his statements
could not have been voluntary due to his mental instability, “the critical
element . . . is whether police conduct constituted overreaching.” See State
v. Poyson, 198 Ariz. 70, 75, ¶ 10 (2000) (internal quotation omitted). We find
no evidence of coercive police activity; no evidence was presented showing
Contreras was forced, threatened with force, or made promises in order to
elicit the statements at issue. Therefore, the trial court did not abuse its
discretion in finding the State met its burden of proving Contreras’s
statements were voluntarily made.

IV.    The Trial Court Did Not Err in Failing to Give a Willits Instruction.

¶22            Contreras argues the trial court erred in failing to, sua sponte,
instruct the jury that it could infer from the State’s failure to obtain a blood
or urine sample following Contreras’s arrest that the results would be
unfavorable to the State, pursuant to State v. Willits, 96 Ariz. 184 (1964).
Contreras argues the absence of this instruction allowed the State to
undermine his insanity defense by asserting without physical evidence that
he had recently taken methamphetamine. Because Contreras did not ask
for a Willits instruction, we review the court’s decision for fundamental
error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005).

¶23            A Willits instruction may be given when police “negligently
fail to preserve potentially exculpatory evidence . . . permit[ting] the jury to
infer that the evidence would have been exculpatory.” State v. Fulminante,
193 Ariz. 485, 503, ¶ 62 (1999). A defendant is entitled to a Willits instruction
upon proving: “(1) the state failed to preserve material and reasonably
accessible evidence that could have had a tendency to exonerate the
accused, and (2) there was resulting prejudice.” State v. Glissendorf, 235
Ariz. 147, 150, ¶ 8 (2014) (citing State v. Speer, 221 Ariz. 449, 457, ¶ 40 (2009),
and State v. Smith, 158 Ariz. 222, 227 (1988)).

¶24            This is not a case where law enforcement officers lost or
destroyed evidence; rather, it is a case where law enforcement officers were
unsuccessful in collecting evidence which the defendant now desires.
Contreras is not entitled to a Willits instruction “merely because a more
exhaustive investigation could have been made.” See State v. Murray, 184
Ariz. 9, 33 (1995); see also State v. Willcoxson, 156 Ariz. 343, 346 (App. 1987)


                                        8
                          STATE v. CONTRERAS
                           Decision of the Court
(noting “failure to pursue every lead or gather every conceivable bit of
physical evidence” does not require a Willits instruction). We therefore find
no error, fundamental or otherwise.

                              CONCLUSION

¶25          For the foregoing reasons, we affirm Contreras’s convictions
and sentences.3




                                    :ama




3       Although Contreras was convicted for three separate charges arising
from his conduct, we find no error. Double jeopardy exists where multiple
punishments are imposed for the same offense. State v. Eagle, 196 Ariz. 188,
190, ¶ 6 (2000) (citing Whalen v. United States, 445 U.S. 684, 688 (1980)).
However, “where the same act or transaction constitutes violation of two
distinct statutory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision requires proof
of a fact that the other does not.” Blockburger v. United States, 284 U.S. 299,
304 (1932). Here, Contreras was charged with three distinct offenses that
require proof of a fact that the others do not: Attempted first-degree murder
under A.R.S. §§ 13-1001 and -1105(A) requires proof the perpetrator
attempted to cause the death of another person with premeditation,
aggravated assault under A.R.S. § 13-1204(A)(1) requires proof the
perpetrator committed assault causing serious physical injury to another,
and aggravated assault under A.R.S. § 13-1204(A)(2) requires proof the
perpetrator committed assault using a deadly weapon.



                                      9
