State v. Lopez ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
BRANDON STEPHEN LOPEZ, Appellant.
No. 1 CA-CR 15-0199
FILED 5-17-2016
Appeal from the Superior Court in Maricopa County
No. CR2012-125141-002
The Honorable Michael W. Kemp, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
Brandon Stephen Lopez, Florence
Appellant
STATE v. LOPEZ
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge John C. Gemmill joined.
C A T T A N I, Judge:
¶1 Brandon Lopez appeals his convictions of one count of first-
degree felony murder and two counts of first-degree burglary. His counsel
filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and
State v. Leon, 104 Ariz. 297 (1969), asserting that he had searched the record
on appeal and had not found any arguable question of law that was not
frivolous. After reviewing the record and considering issues raised by
Lopez in a supplemental brief, we affirm his convictions and the resulting
sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2 One evening in May 2012, Jose Juan Hernandez, accompanied
by Lopez, kicked in the door of C.R.’s Tempe apartment. A fight ensued,
with Hernandez ultimately pistol whipping C.R. in the head and shooting
him in the back of the head. Hernandez and Lopez left in a Pontiac
automobile, but abandoned it after crashing it on a lawn.
¶3 Hernandez and Lopez then went inside a nearby home, and
Hernandez stole car keys from the homeowner at gunpoint. Hernandez
and Lopez saw a police car approaching, and they fled on foot. Lopez hid
in a nearby backyard, while Hernandez broke into several more homes.
Lopez evaded officers that evening, but he was eventually arrested and
charged with one count of first-degree felony murder, two counts of
burglary, and one count of armed robbery.
¶4 At a joint trial with Hernandez, witnesses testified that blood
found in C.R.’s apartment and in the passenger seat of the Pontiac was
consistent with having come from Lopez, who had been stabbed during the
altercation with C.R. Lopez’s fingerprints were also identified on the
magazine in Hernandez’s gun. The homeowner Hernandez stole the car
keys from during the second burglary testified that the burglary was
committed by two men.
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STATE v. LOPEZ
Decision of the Court
¶5 Hernandez testified, stating that on the evening in question,
he and Lopez were on their way to introduce Lopez to Hernandez’s
girlfriend’s daughter. Hernandez indicated that he first stopped at C.R.’s
apartment to repay some money C.R. had loaned him. Hernandez further
testified that Lopez was unaware of the reason for their stop, that he told
Lopez to wait in the car, and that when Lopez walked toward the
apartment, C.R. started attacking him.
¶6 For unrelated reasons, Lopez was wearing a GPS monitoring
anklet the night of the crimes. A witness from the monitoring company
testified that the device indicated that around 6:00 p.m., Lopez left his home
in south central Phoenix, and that just before the monitoring device lost its
signal at 10:00 p.m., Lopez was in Tempe. From roughly 11:00 p.m. until
5:00 a.m., the anklet did not send a GPS signal, even though a motion sensor
in the device indicated Lopez was moving. Around 11:20 p.m., the anklet
began to vibrate and flash a red light, indicating Lopez was outside the
designated area. Around 5:20 a.m., the anklet’s back-up cell tower
monitoring indicated that Lopez was in Tempe. Finally, the GPS signal
returned just before 7:00 a.m., indicating Lopez was back near his home in
south central Phoenix. The monitoring company witness opined that Lopez
may have intentionally blocked the GPS signal.
¶7 The jury found Lopez guilty of one count of first-degree
murder and two counts of burglary, but was unable to reach a verdict on
the armed robbery charge. The jury considered evidence of aggravating
circumstances, and found that the State proved the following aggravating
circumstances as to the burglary convictions: the offenses involved the
infliction or threatened infliction of serious physical injury, the presence of
an accomplice, and the use, threatened use, or possession of a dangerous
instrument. The jury additionally found that the second burglary was
committed for pecuniary gain, and that it resulted in physical, emotional,
or financial harm to the victim.
¶8 The court considered in mitigation Lopez’s age, family
support, and that he had a limited role in the incident, and determined that
mitigating evidence outweighed the aggravating circumstances. The court
sentenced Lopez to life imprisonment with the possibility of release after 25
years for the first-degree murder conviction and to a concurrent, minimum
sentence of seven years for the first burglary conviction. The court imposed
the minimum sentence of seven years for the second burglary conviction,
to be served consecutively to the other sentences, with credit for 1,010 days
of presentence incarceration.
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STATE v. LOPEZ
Decision of the Court
DISCUSSION
¶9 Lopez argues that because he was acquitted of armed
robbery, the jury must have concluded he was only at C.R.’s apartment
intending to meet a girl, and thus he should not have been convicted of first-
degree burglary. But burglary requires only that the defendant enter the
structure with the intent to commit an offense, not that he complete the
underlying offense. Thus, acquittal of the offense underlying a burglary
charge thus does not necessitate acquittal on the separate and distinct
burglary charge. State v. Bottoni, 131 Ariz. 574, 575 (App. 1982).
¶10 The evidence presented at trial supports the burglary verdict.
First-degree burglary is committed by entering a residential structure with
the intent to commit any theft or felony therein, while knowingly
possessing (or while an accomplice knowingly possesses) a deadly weapon
in the course of committing the theft or felony. See Ariz. Rev. Stat.
(“A.R.S.”) §§ 13-303(A)(3), -1507(A), -1508(A).1 Here, Lopez’s blood was
found in the apartment, showing that he entered C.R.’s residence.
Additionally, Lopez’s fingerprints were found on the magazine of
Hernandez’s gun, witnesses saw two men kick open the door to C.R.’s
apartment, and Lopez apparently intentionally blocked his GPS monitor,
all of which support a finding that he left his residence and entered C.R.’s
apartment intending to commit a crime.
¶11 Lopez next asserts that the GPS device was not submitted into
evidence or tested for errors. But Lopez does not claim that he was
prevented from securing and presenting evidence, and the monitoring
company witness was available for cross examination regarding the device.
Moreover, to the extent Lopez is arguing that, without the GPS evidence,
the remaining evidence was insufficient to convict, his argument fails; the
evidence presented to the jurors, as detailed above, was sufficient to “allow
reasonable persons to find a defendant guilty beyond a reasonable doubt.”
See State v. Payne, 233 Ariz. 484, 507, ¶ 76 (2013).
¶12 Lopez also argues that blood and tissue found in the gun
barrel were not subjected to DNA testing. The grip, muzzle, and slide were
subjected to testing. Although additional tissue found in the gun barrel was
not tested, results from such testing would not have undermined the
verdict even if the tissue had been determined not to be from Lopez.
Because Lopez was liable for Hernandez’s acts under an accomplice
1 Absent material revisions after the relevant date, we cite a statute’s
current version.
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STATE v. LOPEZ
Decision of the Court
liability theory, see A.R.S. § 13-303, the absence of Lopez’s DNA on the gun
would not have been dispositive.
¶13 Lopez next contends that the State improperly disclosed
evidence less than 30 days before trial. See Ariz. R. Crim. P. 15.1(c)(1), 15.6.
Before trial, Lopez’s counsel filed a motion for sanctions based on the State’s
August 2014 disclosure of forensics reports, police reports, interview tapes,
and data from Lopez’s GPS anklet, all of which were available in 2012. The
court granted a two-month continuance (trial had been set for September
17, 2014), but otherwise declined to impose sanctions. We review the
superior court’s decision regarding sanctions for an abuse of discretion. See
State v. Lukezic, 143 Ariz. 60, 69 (1984).
¶14 Under Rule 15.7(a), when a party fails to make required
disclosures, “[t]he court shall order disclosure and shall impose any
sanction it finds appropriate,” taking into consideration “the significance of
the information not timely disclosed, the impact of the sanction on the party
and the victim and the stage of the proceedings at which the disclosure is
ultimately made.” The record indicates that the untimely disclosed reports
were provided to counsel weeks before trial. And the two-month
continuance provided Lopez’s counsel time to review the forensic reports
and conduct necessary interviews. The record does not indicate intentional
withholding of evidence by the State, and Lopez does not allege that the
continuance was insufficient to permit counsel to review the disclosed
documents. Accordingly, the superior court did not abuse its discretion by
declining to impose sanctions.
¶15 Finally, Lopez argues that jury members fell asleep or
generally were not paying attention during trial. But this contention is not
supported by the record, which does not contain any reference to distracted
or sleeping jurors. Moreover, Hernandez’s counsel commented in her
closing argument that the jurors had been taking notes, asking questions,
and paying close attention throughout the trial. Accordingly, Lopez’s claim
fails.
¶16 In addition to considering the arguments raised by Lopez,2
we have reviewed the record for reversible error. See Leon, 104 Ariz. at 300.
2 Lopez additionally argues that his attorney failed to call a witness
Lopez had requested. But assertions of ineffective assistance of counsel will
not be considered on direct appeal; such assertions should be raised instead
in a post-conviction proceeding under Rule 32 of the Arizona Rules of
Criminal Procedure. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002).
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STATE v. LOPEZ
Decision of the Court
We find none. Lopez was present and represented by counsel at all stages
of the proceedings. The record reflects that the superior court afforded
Lopez all his constitutional and statutory rights, and that the proceedings
were conducted in accordance with the Arizona Rules of Criminal
Procedure. The court conducted appropriate pretrial hearings, and the
evidence presented at trial was sufficient to support the jury’s verdicts.
Lopez’s sentences fall within the range prescribed by law, with proper
credit given for presentence incarceration.
CONCLUSION
¶17 Based on the foregoing, we affirm Lopez’s convictions and
sentences. After the filing of this decision, defense counsel’s obligations
will end after informing Lopez of the outcome of this appeal and his future
options, unless counsel’s review reveals 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 30 days from the
date of this decision to proceed, if he desires, with a pro se motion for
reconsideration or petition for review.
:ama
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