State v. Lopez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RAYMOND JOHN LOPEZ, Appellant.

No. 1 CA-CR 21-0193
FILED 01-25-2024

Appeal from the Superior Court in Maricopa County
No. CR 2020-112784-001
The Honorable Michael S. Mandell, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jacob R. Lines
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.
 STATE v. LOPEZ
Decision of the Court

B R O W N, Judge:

¶1 This appeal is presented to us under Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defense counsel has
searched the record on appeal and advised us there are no meritorious
grounds for reversal. Lopez was given the opportunity to file a
supplemental brief but did not do so. As discussed below, after our initial
review of the record, we ordered additional briefing, which we have now
considered. Our obligation is to review the entire record for reversible
error. State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We view the
evidence in the light most favorable to sustaining the conviction and
resolving all reasonable inferences against Lopez. State v. Guerra, 161 Ariz.
289, 293 (1989). Because our review of the record reveals no reversible error,
we affirm.

BACKGROUND

¶2 In March 2020, a City of Mesa police officer responded to a
call at an apartment complex concerning “suspicious activity.” The officer
was wearing his police uniform and a body-worn camera. After speaking
with several witnesses, the officer arrested Lopez for disorderly conduct
and transported him to a police holding facility. While at the facility, Lopez
became “aggressive and belligerent,” telling the officer, “I’ll beat your ass
. . . . Take all that equipment off [and] watch what I do to [you].”

¶3 The State initially charged Lopez with (1) disorderly conduct,
a class one misdemeanor; and (2) threatening or intimidating (by word or
conduct) to cause physical injury to the officer, a class six felony (based on
his alleged membership in a criminal street gang). In State v. Arevalo, 249
Ariz. 370, 372, ¶ 1 (2020), the Arizona Supreme Court held that the statute
enhancing criminal penalties for threatening or intimidating based on
membership in a criminal street gang is unconstitutional because it violates
substantive due process. Following that decision, the superior court
granted the State’s motion to amend the charge to reduce the threatening
or intimidating charge to a class one misdemeanor.

¶4 At a bench trial, the State presented testimony from the officer
and the body-worn camera footage capturing the incident at the booking
facility. The officer testified he was threatened by Lopez and felt scared.
The officer said he knew the comments were directed at him because Lopez
made direct eye contact. The superior court found that the State met its
burden of proving beyond a reasonable doubt that Lopez committed the

2
 STATE v. LOPEZ
Decision of the Court

offense of threatening or intimidating, but concluded the State failed to
meet its burden as to disorderly conduct.

¶5 After sentencing Lopez to time served (112 days), the superior
court granted Lopez’s motion to file a delayed appeal under Arizona Rule
of Criminal Procedure 32.1(f). Lopez then appealed and we have
jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A)(1).

DISCUSSION

¶6 We first consider whether Lopez had the right to a jury trial.1
See Penson v. Ohio, 488 U.S. 75 (1988). For the reasons discussed below, we
conclude that threatening or intimidating under A.R.S. § 13-1202(A) did not
have a jury-eligible common-law antecedent at the time of Arizona
statehood; therefore, Lopez had no jury trial right. See Derendal v. Griffith, 209 Ariz. 416, 419, ¶ 9 (2005).

¶7 Whether a defendant has a right to a jury trial is a question of
law we review de novo. Kaniowsky v. Pima Cnty. Consol. Just. Ct., 239 Ariz.
326, 328, ¶ 3 (App. 2016). When a defendant fails to object to an alleged trial
error, we review for fundamental error. State v. Escalante, 245 Ariz. 135, 140,
¶ 12 (2018). We first determine whether trial error exists, and then whether
that error is fundamental. Id. If fundamental error exists, the defendant
must then show resulting prejudice. Id. at 142, ¶ 21.

¶8 Because Lopez was charged with a misdemeanor, punishable
by a maximum of six months imprisonment, a $2,500 fine, and up to two
years’ probation, we presume he was not entitled to be tried by a jury. See
Derendal, 209 Ariz. at 418, ¶ 6 (2005) (explaining that any offense with a
maximum statutory penalty of six months incarceration “is presumptively
a petty offense to which the right of trial by jury does not attach”).

¶9 The Arizona Constitution guarantees a right to a jury trial for
defendants charged with offenses that were granted jury trials before
statehood. Id. at 419, ¶ 9. A modern statutory offense is jury trial eligible if
there is a “common law antecedent that guaranteed a right to trial by jury
at the time of Arizona statehood.” Id. at 425, ¶ 36. If there is no
common-law antecedent for which a jury trial right existed, a court “must
analyze the seriousness of the offense under Article 2, Section 24.” Id. ¶ 37.

1 The superior court’s sentencing order states that Lopez waived his
right to a jury trial, but the State acknowledges that portion of the order was
incorrect because the record shows no colloquy about waiving a jury trial.

3
 STATE v. LOPEZ
Decision of the Court

¶10 Whether a common-law antecedent exists in a particular
circumstance depends on whether the modern and common-law crimes
share substantially similar elements. Id. at ¶ 39. Although they need not be
identical, the crimes should share a “fundamental character.” Kaniowsky,
239 Ariz. at 328, ¶ 8 (citation omitted).

¶11 Lopez argues the misdemeanor crime of threatening or
intimidating and the common-law crimes of assault and extortion have
“substantially similar elements” and share the same “fundamental
character.” Id. Under § 13-1202(A)(1), “[a] person commits threatening or
intimidating if the person threatens or intimidates by word or conduct
. . . to cause physical injury to another person.” He contends that, because
assault and extortion also involve threatening conduct, they should be
considered common-law antecedents to threatening or intimidating.

¶12 Lopez cites the Arizona Penal Code of 1913 for the definition
of common-law assault, reasoning that common-law crimes before
statehood would likely be codified there. However, this court has held that
a crime’s enumeration in early Arizona statutes is not sufficient to show
that it was a common-law crime before statehood. See Bosworth v. Anagnost, 234 Ariz. 453, 455, ¶ 6 (App. 2014) (“[T]he right to a trial by jury does not
depend on whether the conduct [was] a crime prior to statehood, but
‘whether a statutory offense is sufficiently linked to a common law offense
for which a jury trial was granted prior to statehood.’”) (citation omitted);
Ottaway v. Smith, 210 Ariz. 490, 494, ¶ 14 n. 6 (App. 2005) (citing to the
Arizona Territory’s 1901 Penal Code was insufficient because “the test
. . . focuses on the right to trial for the offense at common law.”)

¶13 Lopez also cites common-law definitions of assault,
contending that “assault [as] defined in [the Penal Code] reflected the
common-law version of the statute.” But a defendant facing a simple
assault charge had no right to a jury trial at common law. Goldman v. Kautz, 111 Ariz. 431, 432 (1975); Phx. City Prosecutor’s Off. v. Klausner, 211 Ariz. 177,
179–80, ¶¶ 6–9 (App. 2005). Thus, assault cannot be a jury-eligible
common-law antecedent to threatening or intimidating.

¶14 Addressing extortion, Lopez also sources its definition from
the Arizona Penal Code of 1913. But as noted above, only common-law
definitions are relevant to this inquiry. See Bosworth, 234 Ariz. at 455, ¶ 6.
“The common law confined extortion to the unlawful taking by an officer,
by color of his office, of any money or thing of value that is not due to him,
or more than is due, or before it is due.” Bush v. State, 19 Ariz. 195, 198
(1917). Unlike common-law extortion, threatening or intimidating does not

4
 STATE v. LOPEZ
Decision of the Court

require the perpetrator to be an officer or to have unlawfully taken
property. As a result, these two crimes do not share sufficiently similar
elements or have the same fundamental character. See Derendal, 209 Ariz.
at 425, ¶ 39; Kaniowsky, 239 Ariz. at 328, ¶ 8 (citation omitted).

¶15 Lopez concedes there are “no such severe, direct and
uniformly applied statutory consequences” for the offense of threatening or
intimidating and therefore there is no right to a jury trial through that path.
See Derendal, 209 Ariz. at 425, ¶¶ 36–37. Thus, he has not established that
he is entitled to have his case tried before a jury.

¶16 After a thorough review of the record, we conclude that no
reversible error occurred. See Clark, 196 Ariz. at 541, ¶ 50. The record
reflects Lopez was present and represented by counsel at all critical stages
of the proceedings against him. He was not present at the final trial
management conference when the parties discussed continuing the trial,
but his presence was waived. The evidence presented supports the
conviction and the sentence imposed falls within the range permitted by
law. See A.R.S. §§ 13-707(A)(1), -802(A), -902(A)(5). As far as the record
reveals, these proceedings were conducted in compliance with the Arizona
Rules of Criminal Procedure and Lopez’s constitutional and statutory
rights.

CONCLUSION

¶17 We affirm Lopez’s conviction and sentence. Unless defense
counsel finds an issue that may be appropriately submitted to the Arizona
Supreme Court, his obligations are fulfilled once he informs Lopez of the
outcome of this appeal and his future options. State v. Shattuck, 140 Ariz.
582, 584–85 (1984). Lopez has 30 days from the date of this decision to
proceed, if he wishes, with a pro per motion for reconsideration or petition
for review.

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

5