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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  ANTHONY DANIEL LOPEZ, Appellant.

                             No. 1 CA-CR 19-0257
                               FILED 3-3-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-106891-001
               The Honorable Howard D. Sukenic, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Jennifer Roach
Counsel for Appellant
                             STATE v. LOPEZ
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.


C R U Z, Judge:

¶1            This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for Anthony
Daniel Lopez (“Lopez”) has advised this Court that counsel found no
arguable questions of law and asks us to search the record for fundamental
error. Lopez was convicted of two misdemeanors: count one, possession or
use of marijuana; and count two, misconduct involving weapons. Lopez
was given an opportunity to file a supplemental brief in propria persona; he
has not done so. After reviewing the record, we affirm Lopez’s convictions
and sentences.

               FACTUAL AND PROCEDURAL HISTORY

¶2            We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Lopez. See State v.
Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).

¶3            Two police officers were working off duty at a mall when they
received a call from mall security that there was a man at a jewelry store
with a weapon. There was signage outside the mall area that stated
firearms were prohibited from the premises. The two officers were given a
description of the man, and they approached who they believed to be the
suspect. As they were approaching, the officers could see a magazine
sticking out of the man’s pocket. The officers asked the man, who would
turn out to be Lopez, to place his hands on the jewelry counter in front of
him. One of the officers removed the magazine from Lopez’s pocket and
asked, “Where’s the rest of it?” Lopez responded, “Where’s the rest of
what?” The other officer asked Lopez if he had a gun, and Lopez responded
“no.”

¶4           The officers placed Lopez in handcuffs for their safety, and
again asked him where the gun was. It was only after Lopez was in
handcuffs that he told officers he had a gun in the front of his waistband.
Officers removed the gun, which was loaded with a magazine. Lopez was



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                             STATE v. LOPEZ
                            Decision of the Court

taken outside the mall to the parking lot, and the officers took his name and
information. The officers conducted a records check and found Lopez had
outstanding misdemeanor warrants. Lopez was placed under arrest and
taken back inside to the mall security office. Lopez was searched incident
to arrest, and the officers found a small bag of a green, leafy substance.
Lopez did not seem surprised when the officers found the substance in his
pocket, and he told officers that he used marijuana for medical purposes.
The substance was turned over to a controlled substance officer and was
later tested and revealed to be a usable amount of marijuana.

¶5            Lopez was initially charged with count one, possession or use
of marijuana, a Class 6 felony; and count two, misconduct involving
weapons, a Class 1 misdemeanor. Lopez was charged with misconduct
involving weapons for “fail[ing] to accurately answer the officer when the
officer asked whether he was carrying a concealed deadly weapon.” The
possession of marijuana charge was later designated as a misdemeanor.

¶6            Lopez was out of custody leading up to trial, and he failed to
appear for a status conference, initial pretrial conference, final trial
management conference, and oral argument on Lopez’s motion to quash a
bench warrant. The court issued a bench warrant after each of his absences,
and each absence led to a delay of the trial date. On multiple occasions,
Lopez was offered a plea agreement, however, he rejected the offers. Trial
was finally set for October 2018, and the State moved to continue trial for
five months due to the unavailability of a police officer witness. Lopez
objected to the continuance, but the court granted it. Trial was set for March
2019, and Lopez failed to appear. Another bench warrant was issued. Trial
was then set for April 2019.

¶7              A bench trial was held, and Lopez testified. Lopez denied
telling the officers he did not have a gun. Lopez testified that after an officer
pulled the magazine from his pocket and asked “where’s the rest of it,”
Lopez responded with “the rest of what, the gun[?]” Lopez testified that
the officer responded “yes,” and Lopez then immediately told the officer he
had a loaded gun in his front waistband. Lopez also testified that the
marijuana did not belong to him, and he did not know it was in the pants
he was wearing. He explained that he was homeless and borrowing
someone else’s pants, and the marijuana belonged to the owner of the pants.
During trial, Lopez moved for an Arizona Rule of Criminal Procedure 20
judgment of acquittal, but the court denied the motion. Following the close
of trial, the court determined that the state met its burden of proof and
found Lopez guilty on both counts.



                                       3
                            STATE v. LOPEZ
                           Decision of the Court

¶8            The trial court conducted the sentencing hearing in
compliance with Lopez’s constitutional rights and Arizona Rule of
Criminal Procedure 26. Lopez’s counsel argued that Lopez had strong
family support, and that he does show signs of being very responsible and
caring, which was evidenced by his current employment and financial
support towards his family. Lopez’s counsel also argued that Lopez had
been a victim of assault prior to trial, which affected his thinking and
cognitive abilities. However, the court disregarded this argument because
Lopez’s counsel failed to raise a defense regarding Lopez’s mental health
and his inability to form an intent at trial. Lopez spoke on his own behalf
and maintained his innocence. The State recommended that Lopez receive
twelve months’ unsupervised probation on both counts.

¶9             The court ordered Lopez to twelve months of supervised
probation for both counts. For count one, the court imposed a $750
statutory fine with an 83% surcharge, payable at $100 monthly. For both
counts, the court imposed a $20 probation assessment; a $20 time payment
fee; a $2 victims’ rights assessment; and a $13 criminal penalty assessment.
The court initially imposed a $65 monthly probation fee on each count, for
a total of $130 monthly, but later granted the Adult Probation Department’s
petition to revise that assessment to a total of $65 monthly.

                              DISCUSSION

¶10            We review Lopez’s convictions and sentences for
fundamental error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).
Counsel for Lopez has advised this Court that after a diligent search of the
entire record, counsel has found no arguable question of law. We have read
and considered counsel’s brief and fully reviewed the record for reversible
error, see Leon, 104 Ariz. at 300, and find none. All of the proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure. So
far as the record reveals, counsel represented Lopez at all stages of the
proceedings, and the sentences imposed were within the statutory
guidelines. We decline to order briefing and affirm Lopez’s convictions and
sentences.

¶11            This court does take note that the superior court granted a
significant continuance of trial at the State’s request, and in the face of
Lopez’s objection. The State requested a five-month continuance because a
witness, a police officer, was gone on military leave for five months. The
officer on leave was the one that field tested the marijuana and impounded
the drugs. Lopez was not willing to stipulate to anything the officer would




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                              STATE v. LOPEZ
                             Decision of the Court

testify to and any chain-of-custody issues, and instead, Lopez’s counsel
asked that the case be dismissed.

¶12           In favor of a continuance, the State noted that Lopez had
multiple failures to appear, and had it not been for his failure to show, the
trial would have been conducted back in June 2018. Lopez also requested
a continuance previously, and he was currently not in custody. In
opposition to the continuance, Lopez’s counsel stressed the significant
period of time—five months—the State was seeking to continue trial.
Lopez’s counsel also argued Lopez wanted to live in California, where he
was previously from, and leave Arizona. However, due to this pending
trial, he would be delayed from leaving the state and moving to California
for several months.

¶13           The court noted there was a ten-month period where Lopez
had failed to appear for proceedings and was on bench warrant status,
which had drawn out these proceedings at no fault of the State. The court
further found Lopez was out of custody, and the State was unaware the
officer would be unavailable for trial at this time. The court ruled, “And so
I do believe that on balance, taking into consideration Mr. Lopez’s Rule 8
right to a speedy trial that, in this case, there is an extraordinary
circumstance due to the State’s witness being unavailable and delays
indispensable to the administration of justice.” The court also made clear
that although Lopez was under no such obligation, he could stipulate to the
absent officer’s testimony and proceed to trial that day.

¶14           As far as Lopez wanting to return to California, the court
stated that defense counsel could file a motion to change release conditions.
The defense then made an oral motion to allow Lopez to leave the state,
which was unopposed by the State. The court reviewed Lopez’s release
conditions, and nothing restricted him from going to California, so he was
free to leave Arizona already.

¶15             We will not disturb a ruling on a motion for continuance
absent a clear abuse of the trial court’s discretion. State v. Sullivan, 130 Ariz.
213, 215 (1981). Here, the superior court did not abuse its discretion. In
addressing the alleged denial of the Sixth Amendment right to a speedy
trial, the court must typically consider: (1) the length of the delay; (2) the
reason for the delay; (3) whether the defendant has demanded a speedy
trial; and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514,
530 (1972).




                                        5
                              STATE v. LOPEZ
                             Decision of the Court

¶16            Here, the length of the delay is significant, but it is for a valid
and important reason—the unavailability of a key witness due in great part
to Lopez’s continued failures to appear. Further, Lopez has not made a
showing or raised any arguments as to why the delay prejudiced him.
Lopez’s only argument was that the delay in trial prevented him from
leaving the state, but as the superior court found, nothing in Lopez’s release
conditions prevented him from moving during the pendency of this case.
Finally, Lopez did not demand a speedy trial and was absent from
proceedings for a ten-month period. Prior to arraignment, Lopez requested
three continuances, agreeing to waive and exclude time. Lopez also filed a
motion to continue trial in June 2018. Defense counsel also made an oral
motion to continue trial in August 2018, waiving applicable time limits.
Defense requested a one-day continuance for the final March 2019 trial date,
which was also granted. Lopez then failed to appear for the March 2019
trial date, and trial was again pushed back until April 2019. Therefore, the
pretrial delay did not violate Lopez’s speedy trial rights.

¶17            Upon the filing of this decision, defense counsel shall inform
Lopez of the status of the appeal and of his future options. Counsel has no
further obligations 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). Lopez shall have thirty days
from the date of this decision to proceed, if he desires, with a pro per motion
for reconsideration or petition for review.

                                CONCLUSION

¶18           For the foregoing reasons, we affirm.




                             AMY M. WOOD • Clerk of the Court
                             FILED: AA




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