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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               ANTONIO RAYELL COOPER, JR., Appellant.

                             No. 1 CA-CR 16-0869
                             No. 1 CA-CR 17-0502
                                 (Consolidated)
                               FILED 11-29-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-114883-001
                        No. CR2011-142001-001
                  The Honorable Gregory Como, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Rena P. Glitsos
Counsel for Appellant
                            STATE v. COOPER
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Michael J. Brown and Chief Judge Samuel A. Thumma joined.

B E E N E, Judge:

¶1            Antonio Rayell Cooper, Jr., appeals his convictions and
sentences for aggravated assault, resisting arrest, threatening or
intimidating, and three counts of attempt to commit assault by owner’s
vicious dog. Cooper challenges the constitutionality of the statutory
provision that elevates threatening or intimidating from a class 1
misdemeanor to a class 6 felony if the offender is a criminal street gang
member. Cooper also argues that the legislature improperly invaded the
province of the judiciary by providing for the admission of gang member
indicia evidence in prosecutions for participating in or assisting a criminal
street gang. Finally, Cooper contends the superior court erred by denying
his requests for new counsel, and the court should have ordered an
evaluation of his psychological competency to stand trial. For the reasons
that follow, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2           As twelve-year-old J.O. and his two school-age friends
approached an ice cream truck, Cooper, who was on probation for offenses
committed in CR2011-142001-001, “let [his] dog go” and commanded the
eighty-pound pit bull to “attack, go get them.” The boys fled from the dog
and jumped atop a “power box,” ensuring their relative safety as the dog
barked and lunged at them. Cooper approached the boys, yelled at them
to get down from the box, and continued inciting the dog to attack them.

¶3          Police officer Conn arrived at the scene shortly thereafter, and
Cooper approached him with the dog, “provok[ing]” the officer. Cooper
threatened Conn that he was going to take the officer’s gun and kill him.
Cooper then “charged” the officer, and the dog, following Cooper’s
command to “go get him,” “jump[ed] up” on Conn as if attempting to bite


1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State
v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015).



                                     2
                               STATE v. COOPER
                              Decision of the Court

him. The dog tore the flap off the ammunition pouch that was attached to
Conn’s duty belt, and Cooper swung the dog’s leash at Conn, hitting him
in the head with the metal end. Conn then “[t]ased” Cooper right before
other officers arrived and detained Cooper on the ground. As the officers
attempted to handcuff Cooper, he tensed his arms to keep them under his
body. As a result of his encounter with Cooper and the dog, Officer Conn
sustained injuries to his head, hand, and knee.

¶4             The State charged Cooper in CR2016-114883-001 with
aggravated assault, resisting arrest, threatening or intimidating, and three
counts of attempt to commit assault by owner’s vicious dog. In connection
with the threatening or intimidating charge, the State also alleged Cooper
was a member of a criminal street gang, thereby raising the offense from a
class 1 misdemeanor to a class 6 felony. See Ariz. Rev. Stat. (“A.R.S.”)
§ 13-1202(B). Detective Hall of the Phoenix Police Department’s Gang
Enforcement Unit testified regarding various indicia of Cooper’s
membership in the Hellbound Gangsters, a criminal street gang. See A.R.S.
§ 13-105(9) (indicia of criminal street gang membership).

¶5            The jury found Cooper guilty on all counts. The superior
court imposed a combination of concurrent and consecutive prison terms
totaling 24 years and revoked Cooper’s probation in CR2011-142001-001.2
Cooper timely appealed, and we have jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                                 DISCUSSION

    I.   A.R.S. § 13-1202(B) Does Not Violate Cooper’s Constitutional
         Rights.

¶6              The threatening or intimidating statute provides, in relevant
part:

         A. A person commits threatening or intimidating if the
         person threatens or intimidates by word or conduct:

         1. To cause physical injury to another person . . . .

         ...




2     Cooper raises no issues independently related to the probation
revocation.


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                             STATE v. COOPER
                            Decision of the Court

       B. Threatening or intimidating pursuant to subsection A,
       paragraph 1 . . . is a class 1 misdemeanor, except that it is a
       class 6 felony if:

       ...

       2. The person is a criminal street gang member.

A.R.S. § 13-1202.

¶7            Cooper presents multiple arguments contesting the
constitutionality of § 13-1202(B)(2) under the federal and state constitutions.
Asserting “[m]ere membership in a gang is not a crime[,] ”Cooper
principally argues § 13-1202(B)(2) facially violates his right to freely
associate, and he contends the provision denies him due process because
his conduct underlying the threatening and intimidating offense was not
gang-related.

¶8            Because Cooper did not raise these arguments at trial, we
review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19
(2005). “[T]he first step in fundamental error review is determining
whether trial error exists.” State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).
This Court reviews de novo the constitutionality of a statute, beginning with
a presumption that the law is constitutional. State v. Russo, 219 Ariz. 223,
225, ¶ 4 (App. 2008). The party challenging the statute bears the burden to
persuade us otherwise. Id.

¶9            Cooper misconstrues § 13-1202. The statute does not
criminalize one’s association with a gang; rather, it enhances the penalty
imposed on a criminal street gang member who commits threatening or
intimidating. State v. Meeds, 244 Ariz. 454, 463, ¶ 28 (App. 2018). As this
Court recently determined, § 13-1202(B)(2) does not violate the First
Amendment’s right of association. Id. at ¶¶ 29-32. We discern no
principled justification to depart from Meeds. Absent compelling authority




                                       4
                             STATE v. COOPER
                            Decision of the Court

to the contrary,3 we will not construe Arizona’s right of association more
broadly than the federal counterpart. See State v. Casey, 205 Ariz. 359, 354,
¶ 8 (2003) (“Normally we interpret clauses in the Arizona Constitution in
conformity with decisions of the United States Supreme Court and its
interpretation of similar clauses in the United States Constitution.”),
superseded by statute on other grounds.

¶10           Cooper’s due process challenge also fails. He provides no
authority to support the proposition that a conviction under
§ 13-1202(A)(1), (B)(2) requires evidence of gang-related threatening or
intimidating conduct. Indeed, Cooper admits that “A.R.S. § 13-1202(B) is
clear and the Court should interpret it accordingly — that the purpose is to
punish gang members with a felony conviction if they threaten or
intimidate anyone, regardless of the circumstances.”

¶11           Moreover, Cooper’s apparent substantive due process
argument is without merit. “Substantive due process protects an individual
from government interference with rights implicit in the concept of ordered
liberty.” Simpson v. Owens, 207 Ariz. 261, 267, ¶ 17 (App. 2004) (quotations
omitted). Because Cooper does not contend § 13-1202(B)(2) implicates a
fundamental right or that criminal street gang members constitute a suspect
class, this Court will find the statute comports with due process if the law
has “any conceivable rational basis to further a legitimate governmental
interest.” Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550, 555 (1981).
The sentence enhancement provision in § 13-1202 for gang members clearly
“serves a compelling state interest . . . : to protect the public from threats
and intimidation by members of criminal street gangs, who presumably
have a much greater ability than non-gang members to make good on those
threats.” Meeds, 244 Ariz. at 463, ¶ 32. Consequently, § 13-1202(B)(2) does
not violate substantive due process.




3       Cooper relies on a number of cases to support his assertion that the
Arizona Constitution “may grant broader rights or protections than its
federal counterparts in some areas.” Only one of the cited cases, however,
mentions the right to assemble. See Ariz. Const. art. II, § 5 (“The right . . .
of the people peaceably to assemble for the common good, shall never be
abridged.”); Helge v. Druke, 136 Ariz. 434, 439 (App. 1983). But, as Cooper
properly conceded, the court in Helge did not apply Article 2, Section 5, in
rejecting the petitioner’s claim that a subpoena duces tecum violated his
freedom of association. Id. Thus, Helge is not applicable.


                                      5
                             STATE v. COOPER
                            Decision of the Court

¶12           No error, fundamental or otherwise, occurred. See Escalante,
245 Ariz. at 142, ¶ 21.

II.     Cooper Lacks Standing to Challenge A.R.S. § 13-2321(E).

¶13            For prosecutions of participating in or assisting a criminal
street gang, A.R.S. § 13-2321(E) provides: “Use of a common name or
common identifying sign or symbol shall be admissible and may be
considered in proving the existence of a criminal street gang or membership
in a criminal street gang.” (Emphasis added.) Cooper argues that, by
mandating admission of a common name or common identifying sign or
symbol in § 13-2321(E), the legislature “strips the court of discretion, and
dictates to the Supreme Court that it must allow such evidence,” thereby
violating the separation of powers doctrine set forth in the Arizona
Constitution. See Ariz. Const. art. 3 (“The powers of the government of the
state of Arizona shall be divided into three separate departments, the
legislative, the executive, and the judicial; and, except as provided in this
constitution, such departments shall be separate and distinct, and no one of
such departments shall exercise the powers properly belonging to either of
the others.”); Ariz. Const. art. 6, § 5(5) (“The supreme court shall have . . .
[p]ower to make rules relative to all procedural matters in any court.”).

¶14            We do not address Cooper’s argument because he lacks
standing to challenge § 13-2321(E). He was not convicted, let alone charged,
in this case with participating in or assisting a criminal street gang. See State
v. Varela, 120 Ariz. 596, 599 (1978) (noting a defendant lacks standing “to
attack a statute on grounds not applicable to himself”).

III.    The Court Did Not Abuse Its Discretion by Denying the Motion
        for New Counsel.

¶15          Before trial, Cooper repeatedly requested appointment of
new counsel. The superior court denied each request but offered to allow
Cooper to represent himself. Cooper chose not to appear pro per.

¶16           On appeal, Cooper argues the court erred by denying his
requests for new counsel without conducting an evidentiary hearing. We
review the superior court’s decision to deny a request for new counsel for
an abuse of discretion. State v. Cromwell, 211 Ariz. 181, 186, ¶ 27 (2005).

¶17         Although a criminal defendant has the right to be represented
by competent counsel, he is entitled neither to counsel of his choice nor to
a meaningful relationship with his attorney. Id. at ¶ 28. Ordinarily, only
the presence of an “irreconcilable conflict or a completely fractured


                                       6
                             STATE v. COOPER
                            Decision of the Court

relationship” between trial counsel and an accused will require the
appointment of new counsel. Id. at ¶ 29. If a defendant makes sufficient
factual allegations that raise a colorable claim of an irreconcilable conflict
or of a complete breakdown in communication with counsel, the court must
conduct a hearing. State v. Torres, 208 Ariz. 340, 343, ¶ 9 (2004). However,
not every complaint voiced by a defendant requires a formal hearing or an
evidentiary proceeding. See id. at ¶ 8. “For example, generalized
complaints about differences in strategy may not require a formal hearing
or an evidentiary proceeding.” Id.

¶18          Here, the court was not required to conduct a formal hearing
before denying Cooper’s requests for new counsel. In response to Cooper’s
complaints that appointed counsel had not provided him with the State’s
discovery nor communicated with him about “details” of his case, his
lawyer explained the following to the court:

       I do want to let you know we have had communications. He
       was originally out of custody. He did fail to appear, a warrant
       was issued for arrest; so we did lose contact with him. When
       he was brought into Judge Richter’s court, he wasn’t happy
       with the plea and had to be removed from the court. We set
       up two jail visits . . . and he failed to appear for both of those
       jail visits.

       We did have a settlement conference where all of his pleas
       were explained to him by Commissioner French. The fact he
       was on release on one of them and on probation on the others,
       that was all explained and it was gone into detail. In fact, the
       offer does expire today. We did follow-up with his request to
       run it concurrent; that was denied by the State.

       ...

       And Your Honor, he honestly will not listen to me. . . . [H]e
       is upset I will not file motions that I have told him there are
       no legal bas[e]s to file.

       ...

       [W]e’ve sent [discovery] to him. We sent him the first group
       when he was out. We sent him another group when he was
       in custody. We’ve given it to him. I talked to him on the
       phone about the case . . . and the witnesses that we were
       interviewing just last week; we went over that.


                                       7
                            STATE v. COOPER
                           Decision of the Court

      I went over his concerns, what he thinks the witnesses would
      say. Also we have a 40-minute jail visit to go over everything
      with him.

      ...

      We’ve done significant work on the case. We’ve done all the
      interviews. We’re ready to go . . . .

¶19          In light of counsel’s comments, she and Cooper did
communicate about this case. See State v. Ossana, 199 Ariz. 459, 461, ¶ 7
(App. 2001) (noting superior court determines credibility of witnesses).
Further, her comments reveal that Cooper and his insistence in filing
baseless motions caused the conflict between the two. Thus, the conflict
was not “irreconcilable.” As a result, Cooper failed to make a sufficient
showing of a fractured relationship that would require an evidentiary
hearing. In any event, the court properly explored the bases of Cooper’s
stated reasons for his request for substitute counsel, and Cooper does not
describe what additional facts would arise had a more formal hearing been
conducted. See State v. Paris-Sheldon, 214 Ariz. 500, 505, ¶ 11 (App. 2007).
No abuse of discretion occurred.

IV.    The Court Did Not Err By Declining to Sua Sponte Order an
       Evaluation of Cooper’s Competency to Stand Trial.

¶20            Finally, Cooper complains that the superior court should
have sua sponte ordered an evaluation of his competency to stand trial. We
disagree. When the court explored with Cooper the possibility of him
proceeding pro per, the court found: “Obviously you have some college,
you’re at least of a normal intelligence or probably higher than that. You
have no psychiatric or psychological problems.” The court’s findings
apparently were based, at least in part, on Cooper’s express assurances that
he was educated, “not incompetent[,]” and “not Rule 11.” See Ariz. R. Crim.
P. 11 (describing procedures for determining a defendant’s mental
competency to stand trial). On this record, although there are indications
that Cooper suffered from a bipolar disorder as a juvenile, the court acted
well within its discretion in declining to sua sponte order an evaluation of
Cooper’s mental capacity for purposes of this trial. See Ariz. R. Crim. P.
11.2 (stating “the court may, on motion or on its own, order a defendant’s
examination”) (emphasis added). No error, fundamental or otherwise,
occurred.




                                     8
                   STATE v. COOPER
                  Decision of the Court

                     CONCLUSION

¶21   Cooper’s convictions and sentences are affirmed.




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




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