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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      STEVEN GUARDADO, Appellant.

                             No. 1 CA-CR 15-0198
                               FILED 3-31-2016


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201400716
           The Honorable Billy K. Sipe, Jr., Judge Pro Tempore
                 The Honorable Derek Carlisle, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric K. Knobloch
Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
                          STATE v. GUARDADO
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined.


P O R T L E Y, Judge:

¶1            Defendant Steven Guardado challenges his convictions and
sentences for the sale and possession of dangerous drugs, possession of
drug paraphernalia, and misconduct involving weapons. He argues the
court violated his right to counsel by failing to grant him a continuance to
retain his counsel of choice. For the following reasons, we affirm.

             FACTS1 AND PROCEDURAL BACKGROUND

¶2            Guardado was watched by the Lake Havasu City Police
Department as he sold methamphetamine to an informant once in February
2013 and twice in May 2014. After the police secured a search warrant and
searched Guardado’s home and vehicle, they found a gun in his bedroom;
recovered some of the money he had received from the informant, of which
the police had photocopies; and recovered syringes, a pill bottle filled with
methamphetamine, and a glass pipe for smoking methamphetamine.
Guardado also admitted to using and selling methamphetamine.

¶3            He was indicted for three counts of selling dangerous drugs;
possession of dangerous drugs; possession of drug paraphernalia; and
misconduct involving weapons. He went to trial and the jury found him
guilty on all counts. He was subsequently sentenced to a lengthy prison
sentence. We have jurisdiction over his appeal 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(A).2

                               DISCUSSION



1 We view the facts and all reasonable inferences drawn from those facts in
the light most favorable to upholding the verdict. State v. Tamplin, 195 Ariz.
246, 246, ¶ 2, 986 P.2d 914, 914 (App. 1999).
2 We cite the current version of the applicable statutes unless otherwise

noted.

                                      2
                           STATE v. GUARDADO
                            Decision of the Court

¶4            The Sixth Amendment to the United States Constitution
guarantees a criminal defendant the right to counsel, and counsel of choice.
United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). The right is not
absolute, and a trial court is granted “wide latitude in balancing the right
to counsel of choice against the needs of fairness, and against the demands
of its calendar.” Id. at 152 (citations omitted). In fact, the decision to grant
a defendant’s request for a continuance to acquire counsel of choice is “left
to the sound discretion of the trial [court],” State v. Sullivan, 130 Ariz. 213,
215, 635 P.2d 501, 503 (1981), and will only be disturbed for an abuse of
discretion and if the defendant demonstrates prejudice. State v. Forde, 233
Ariz. 543, 555, ¶ 18, 315 P.3d 1200, 1212 (2014) (citations omitted); State v.
Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990) (citations
omitted).

¶5            At the final management conference, some two weeks before
trial, Guardado requested a thirty-day continuance to hire a lawyer. After
discussion, including a determination that the prosecutor and defense
lawyer were ready for trial as scheduled, the court found there was no
legitimate reason for the delay and denied the request.

¶6            Citing to United States v. Gonzales-Lopez, 548 U.S. at 146, and
State v. Aragon, 221 Ariz. 88, 210 P.3d 1259 (App. 2009), Guardado argues
the court erred by not granting him a continuance to hire a private lawyer.
We disagree.

¶7            In Gonzales-Lopez, after he was arraigned, the defendant called
a lawyer, who then flew from California, met with the defendant, and
agreed to represent him. 548 U.S. at 142. The lawyer unsuccessfully filed
two applications for admission pro hac vice, and then his appeal, in the form
of an application for writ of mandamus, was dismissed by the circuit court.
Id. The defendant then hired local counsel, but was precluded from having
his desired lawyer at counsel table during trial. Id. at 143. The defendant
appealed after being convicted, and the circuit court found that the district
court had erred and set aside the conviction. Id. at 143-44. The United States
Supreme Court granted certiorari and affirmed the appellate decision. Id.
at 152.

¶8            In Aragon, the defendant’s appointed counsel moved to
continue the aggravated DUI trial a week before trial so that a named
private lawyer that the defendant wanted to retain could file a notice of
appearance “and have enough time to prepare for trial.” 221 Ariz. at 89, ¶
2, 210 P.3d at 1260. The court immediately denied the request and again
declined to continue the trial two days later at the status conference when


                                       3
                           STATE v. GUARDADO
                            Decision of the Court

the private lawyer appeared and asked to be substituted in as counsel. Id.
at ¶¶ 2-3. After the defendant was convicted and sentenced to six years in
prison, this court addressed the choice-of-counsel legal issue. Id. at ¶ 1. In
finding that the trial court erred by not granting a continuance to allow the
private lawyer to substitute for the appointed counsel, this court noted the
following: an unreasoning and arbitrary insistence on going to trial “in the
face of a justifiable request for delay violates a defendant’s right to counsel
of choice,” id. at 90, ¶ 5, 210 P.3d at 1261 (internal quotes and citation
omitted); the defendant had not sought nor been granted prior
continuances, id. at ¶ 6; the case was not complex and the law enforcement
personnel or professionals “routinely juggle their calendars to
accommodate court appearances,” id.; any speedy trial concerns should not
have been considered given that time is excluded because of the
defendant’s request, id. at 91, ¶ 7, 210 P.3d at 1262; and “there is no authority
to support the court’s apparent belief that a first request for a continuance
made five or six days before trial is inherently unreasonable,” id. As a
result, this court determined that the denial of the continuance was
“erroneous deprivation of the right to counsel of choice, with consequences
that are necessarily unquantifiable and indeterminate, unquestionably
qualifies as structural error and thus cannot be waived.” Id. at ¶ 9 (internal
quotes omitted).

¶9            Here, unlike Gonzalez-Lopez and Aragon, Guardado did not
have a counsel of choice. He did not name the private lawyer he wanted to
hire to represent him, and that lawyer never appeared before or at trial to
attempt to represent him. Instead, when he sought the thirty-day trial
continuance, his first,3 Guardado stated he had the money and had met
with a lawyer, who had said “he would take it.” As a result, he was only
looking for the opportunity to attempt to hire a private lawyer of his
choosing.

¶10           Although the court denied his request for a continuance even
though the State did not oppose it, or even a short continuance of the final
management conference, the court did not foreclose Guardado’s right to
hire a lawyer. Moreover, the court did not foreclose the newly-hired lawyer
from seeking a continuance for reasons unrelated to merely being newly

3 Guardado was released from custody some three weeks after his
arraignment. During the subsequent six months, the court had granted the
defense two continuances before setting a trial date and then continued the
status conference a third time after setting the dates for trial and the final
management conference.


                                       4
                          STATE v. GUARDADO
                           Decision of the Court

hired. Specifically, the court told Guardado that “you certainly have a
chance to still hire a lawyer [and] [i]f you hire an attorney between now and
[the trial date] and . . . if [that lawyer] ha[s] some other reason [he or she]
wan[ts to] continue the trial, then [the lawyer] can certainly make that
request.” And the court advised him that if he was going to hire a lawyer
he should do it quickly, and Guardado responded, “I will.” Guardado did
not hire a lawyer, and proceeded to trial with appointed counsel.

¶11           Although this case has some similarities to Aragon – the
timing of the continuance shortly before trial, the court’s focus on getting
the case tried, and the competence and preparation of appointed counsel
throughout the proceedings - the differences, as noted, are important.
Additionally, and unlike Aragon, Guardado had unsuccessfully requested
a different appointed lawyer some four months earlier, and was told by the
court that “[i]f you want, you can hire whoever you want to hire to
represent you [and] [i]f you hire somebody to represent you, then you get
to pick your own attorney.” Guardado did not hire a lawyer at that time,
nor at any time before trial. Consequently, because Guardado only sought
the opportunity to attempt to hire a lawyer and was given that opportunity,
albeit limited, the court did not violate his Sixth Amendment right to
counsel of choice by denying his motion for continuance.4

                              CONCLUSION

¶12          For the foregoing reasons, we affirm Guardado’s convictions
and sentences.




                                  :ama




4 If Guardado had hired counsel who appeared by the date of trial and,
based on this record, a short continuance had been denied, Aragon suggests
the appropriate remedy.

                                      5
