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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 3-3-2020
STATE v. LOPEZ

Decision of the Court

2

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 
STATE v. LOPEZ

Decision of the Court

3

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.
STATE v. LOPEZ

Decision of the Court

4

¶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 
STATE v. LOPEZ

Decision of the Court

5

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).
STATE v. LOPEZ

Decision of the Court

6

¶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.