                          NOTICE: NOT FOR PUBLICATION.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
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                 ROBERT ANTHONY GARCIA, Appellant.

                             No. 1 CA-CR 12-0456
                              FILED 3-27-2014


           Appeal from the Superior Court in Maricopa County
                          CR2010-157605-001
              The Honorable Robert L. Gottsfield, Retired

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Colby Mills
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant
                            STATE v. GARCIA
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Michael J. Brown joined.


C A T T A N I, Judge:

¶1            Robert Anthony Garcia appeals his convictions of one count
of resisting arrest and two counts of disorderly conduct. Garcia asserts
that the trial court violated his due process rights by not sua sponte
ordering a fourth competency evaluation during trial. For reasons that
follow, we conclude that the court did not violate Garcia’s due process
rights and affirm his convictions and resulting sentences.

                    PROCEDURAL BACKGROUND

¶2            In November 2010, the State charged Garcia with one count
of resisting arrest (a class 6 felony), one count of aggravated assault (a
class 5 felony), and one count of aggravated assault (a class 6 felony). The
charges stemmed from Garcia’s physical altercation with Glendale police
officers who were responding to a domestic disturbance report.

¶3            Garcia’s counsel requested competency proceedings three
times prior to trial. The trial court ordered competency evaluations each
time, and Garcia was examined by a total of six mental health
professionals, all of whom opined that he was competent. After
considering the experts’ reports in each proceeding, the trial court each
time found Garcia competent to stand trial.

¶4             Prior to trial, Garcia sought to represent himself, and the
court eventually permitted him to do so. Garcia testified at trial and
called his mother as a witness on his behalf. He also cross-examined the
State’s witnesses. Although Garcia’s defense was somewhat disjointed, he
successfully persuaded the jury to acquit him of two of the charged
offenses; he was acquitted of aggravated assault and instead convicted of
the lesser-included offense of disorderly conduct on those charges.

¶5            The trial court sentenced Garcia to a presumptive term of
3.75 years’ imprisonment for resisting arrest, with credit for 373 days of
presentence incarceration, and six months in jail (time already served) for
each disorderly conduct conviction.


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                             STATE v. GARCIA
                            Decision of the Court

¶6            Garcia timely appealed, and we have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033.

                               DISCUSSION

¶7            Garcia’s only argument on appeal challenges the trial court’s
failure to order a fourth competency evaluation. Garcia does not take
issue with the trial court’s rulings in the three competency proceedings
conducted prior to trial, but he asserts that the trial court should have sua
sponte ordered another competency proceeding based on his trial
testimony and his statements, arguments, and motions made while
representing himself.

¶8           We review the trial court’s determination of competency for
an abuse of discretion. State v. Glassel, 211 Ariz. 33, 44 ¶ 27, 116 P.3d 1193,
1204 (2005). Because Garcia did not seek a fourth competency evaluation,
however, our review is for fundamental error only. See State v. Henderson,
210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Under this standard of
review, Garcia bears the burden of establishing both fundamental error
and resulting prejudice. See id. at ¶ 20.

¶9              “Due process requires that the state ‘observe procedures
adequate to protect a defendant’s right not to be tried or convicted while
incompetent.’” State v. Amaya-Ruiz, 166 Ariz. 152, 161, 800 P.2d 1260, 1269
(1990) (citation omitted). Under Rule 11.1 of the Arizona Rules of
Criminal Procedure, a defendant is deemed incompetent if, due to mental
illness, he is unable to understand the proceedings against him or assist in
his defense. Under Rule 11.3(a), a defendant’s competency to stand trial
should be examined and a hearing conducted if there are reasonable
grounds for such an examination. A trial judge has “a continuing duty to
inquire into a defendant’s competency.” State v. Mendoza-Tapia, 229 Ariz.
224, 231, ¶ 22, 273 P.3d 676, 683 (App. 2012).

¶10         Here, the record—including the results of three pre-trial
competency proceedings—supports the trial court’s determination that
Garcia was competent to stand trial, and the court did not err by
proceeding with the trial without sua sponte ordering a fourth competency
determination.

¶11          The first competency proceeding was initiated in February
2011, when Garcia’s assigned counsel moved for a competency hearing
under Rule 11. Counsel stated that Garcia (1) exhibited paranoia and
based legal decisions on imaginary issues, including alleged conspiracies


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                            STATE v. GARCIA
                           Decision of the Court

against him; (2) fluctuated in his ability to comprehend legal issues
regarding his case; and (3) talked incessantly about issues unrelated to the
case and seemed unable to focus on a particular topic. The trial court
granted the motion, and two mental health professionals evaluated
Garcia. In March 2011, after considering the mental health professionals’
reports, the court found Garcia competent to stand trial. 1

¶12          In July 2011, newly-appointed counsel moved for a second
competency hearing, noting concerns that Garcia (1) suffered from
delusions and had an apparent inability to focus on the case and (2) was
unable to effectively assist in his defense because his competency
continued to fluctuate. The trial court granted the motion, and two
additional mental health professionals evaluated Garcia. In October 2011,
after considering the experts’ reports, the trial court again found Garcia
competent to stand trial.

¶13          In January 2012, Garcia again obtained new defense counsel,
who requested another competency hearing based on concerns that Garcia
(1) was not logically or rationally thinking about his case, (2) had filed
“rambling and incoherent” pleadings in federal court to get the charges
dismissed, and (3) was not able to competently make decisions about the
plea process or to assist counsel. The trial court granted the motion, and
two more experts evaluated Garcia.

¶14           While awaiting the third competency determination, Garcia
filed several motions to represent himself. Garcia’s motions detailed his
frustration with trial delays caused by the competency proceedings and
discussed alleged conspiracy theories and tangential religious issues. In
May 2012, after considering the experts’ reports, the trial court again
found Garcia competent to stand trial.

¶15         During a status conference on June 5, 2012, the trial court
addressed Garcia’s self-representation motions. Garcia told the court he


1      Garcia has not referenced any transcripts from any of the
competency proceedings conducted by the trial court, and he specifically
requested that those proceedings not be part of the record on appeal. This
court thus presumes that the record supports the trial court’s findings and
determinations of competency in those proceedings. See State v. Zuck, 134
Ariz. 509, 513, 658 P.2d 162, 166 (1982) (“Where matters are not included
in the record on appeal, the missing portions of the record will be
presumed to support the action of the trial court.”).



                                     4
                            STATE v. GARCIA
                           Decision of the Court

wanted to represent himself because he believed his prior appointed
counsel had sought competency determinations to extend the litigation
and harass him. Garcia’s counsel at the time indicated that he did not
intend to request another competency evaluation. Noting the nature of
some of Garcia’s writings, the court stated that it was not inclined to let
Garcia represent himself and denied the self-representation motions.

¶16           Garcia subsequently filed another self-representation
motion, which the court addressed during a status conference on June 13,
2012. Garcia reiterated his desire to represent himself, and his counsel
stated that Garcia “is aware of the system. He knows the parties. He
knows what role they play. He knows his case. We’ve discussed at length
the possibility or the outcomes if he goes to trial and loses.” Garcia’s
counsel also indicated his belief that Garcia understood the consequences
of the charges he faced and of waiving counsel.

¶17           After speaking with Garcia and counsel, the court expressed
its belief that Garcia understood the trial process and could proceed
respectfully. The court stated, “You know, reading this motion and
talking to you in person are like two completely different things.” The
court further stated that “[r]eligious preoccupation and knowing [B]ible
verses does not make you incompetent.”

¶18          The court granted Garcia’s motion to represent himself,
finding Garcia competent to knowingly, intelligently, and voluntarily
waive his right to counsel. Garcia’s counsel agreed to remain on the case
as advisory counsel, and the court noted its intent to monitor Garcia’s
competency throughout trial and to reinstate appointed counsel if
necessary.

¶19            Although Garcia does not challenge the trial court’s ruling
permitting him to represent himself or the court’s pre-trial rulings finding
him competent to stand trial, he contends that his motions, arguments,
and trial testimony should have led the trial court to question his
competency and order a fourth competency proceeding. But neither he
nor advisory counsel raised an issue of competency during trial, and the
trial court acted within its discretionary authority by going forward with
trial without sua sponte ordering an additional competency proceeding.

¶20          Garcia acknowledges that he conducted himself reasonably
and politely while representing himself, and that he consulted with
advisory counsel throughout the trial. Garcia was actively involved in
selecting the jury, and he made an opening statement that coherently



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                             STATE v. GARCIA
                            Decision of the Court

described the incident leading to his arrest. Garcia cross-examined the
State’s witnesses, and he effectively challenged an allegation that he bit
one of the police officers while being arrested—Garcia’s cross-examination
of one of the witnesses resulted in the witness admitting that a
supplemental police report contained no mention of a biting incident.
Finally, as noted previously, Garcia called witnesses (including himself
and his mother), and he successfully persuaded the jury to acquit him on
two of the charged offenses; he was convicted only of lesser-included
offenses on those charges.

¶21            Although Garcia asserts that he was “dominated by his
religious beliefs” or “driven by his paranoia and hyper religiosity,” the
trial court did not share that view. On the last day of trial, the court stated
its opinion that Garcia was “perfectly capable and competent” and
instructed the jury that “[t]he defendant has been found competent to
stand trial. The issue of competence should not affect your deliberations
in any way.”

¶22          Following the verdict, Garcia filed several motions
containing religious fixations, and the court denied the motions as not
having a legal basis. The court also noted, however, that “there is no
question [Garcia] is completely competent and knows exactly what is
going on.”

¶23           The trial court was entitled to rely on its own observations
regarding competency. See Mendoza-Tapia, 229 Ariz. at 231, ¶ 23, 273 P.3d
at 683. In light of those observations and in light of the other evidence set
forth above, we conclude that Garcia has not established that the trial
court should have sua sponte ordered a fourth competency proceeding.
Nor has Garcia established that he was prejudiced by proceeding to trial
without an additional formal competency determination.

                              CONCLUSION

¶24          For the foregoing reasons, we affirm Garcia’s convictions
and resulting sentences.




                                     :MJT




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