Court of Appeals of Arizona, Second Division, Department B
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20102732001 Honorable Howard Fell, Judge Pro Tempore
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Alan L. Amann Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender By Michael J. Miller Attorneys for Appellant
PHILIP G. ESPINOSA, Judge.
¶1 After a jury trial, Joseph Camargo was convicted of possession of a deadly weapon by a prohibited possessor. The trial court found he had three prior felony convictions and sentenced him to a presumptive ten-year prison term. On appeal, Camargo argues the court abused its discretion by denying his motion to continue the trial date and fundamentally erred in failing to instruct the jury on the state's burden of disproving his justification defense. He also contends the state presented insufficient evidence to disprove that defense. For the following reasons, we affirm in part and vacate in part.
Factual Background and Procedural History
¶2 "On appeal, we view the facts in the light most favorable to upholding the verdict and resolve all inferences against the defendant." State v. Klokic, 219 Ariz. 241, n.1, 196 P.3d 844, 845 n.1 (App. 2008). One morning in July 2010, police officers responded to a 9-1-1 call reporting shots fired near a local park. The first officer to arrive at the park saw four individuals, including Camargo, congregated in the parking lot next to a blue sedan. Because of the shots fired-report, he directed Camargo to "get on the ground" and put his hands up. Instead, Camargo turned his back, prompting the officer to wrestle him to the ground, revealing a handgun in the waistband of Camargo's pants. After the officer removed the gun and placed it on the ground, Camargo said "[you] didn't find the gun on [me] . . . it was l[y]ing on the ground." Later, while he was being transported to the station, Camargo asked the officer "how come [you] couldn't just say [you] found the gun lying on the ground?"
¶3 After Camargo's prior felony convictions were discovered, he was charged with prohibited possession of a deadly weapon. He was convicted and sentenced as set forth above, and we have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Motion for Substitution of Counsel
¶4 Camargo first argues the trial court erred by denying his morning-of-trial requests to substitute counsel and continue the trial to allow his newly retained attorney time to prepare. His trial, initially set for June 2011, had been reset to August 9 on the state's motion. When the August 9 trial date was affirmed at a May 23 hearing, Camargo did not indicate any desire or plans to change counsel. The morning of trial, however, he filed a notice stating that the Roach Law Firm, LLC, would be replacing the Pima County Legal Defender as his counsel. This notice was accompanied by a request for a continuance of the trial date "to allow counsel to prepare for trial." After a brief hearing, the court denied the motion for substitution and corresponding motion to continue.
¶5 Because the attorney Camargo had retained was unprepared to go forward with the trial as scheduled, Camargo's request for new counsel was inextricably linked to his motion to continue the trial. Thus, while this argument may implicate his constitutional right to counsel, it is premised on the court's decision to deny the motion for a continuance, which will not be reversed absent an abuse of discretion. See State v. Hein, 138 Ariz. 360, 368, 674 P.2d 1358, 1366 (1983) (applying abuse of discretion standard where defendant requested new representation on morning of trial); State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990) (abuse of discretion standard applied to denial of continuance that implicated constitutional right to counsel).
¶6 "'[A]n indigent criminal defendant possesses rights under the Sixth Amendment [of the United States Constitution] and Article 2, Section 24 [of the Arizona Constitution], to choose representation by non-publicly funded private counsel . . . .'" State v. Aragon, 221 Ariz. 88, ¶ 4, 210 P.3d 1259, 1261 (App. 2009), quoting Robinson v. Hotham, 211 Ariz. 165, ¶ 16, 118 P.3d 1129, 1133 (App. 2005) (alterations in Aragon). Nevertheless, this right "is not absolute, but is subject to the requirements of sound judicial administration." Hein, 138 Ariz. at 369, 674 P.2d at 1367. Consequently, "[a] trial court has 'wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar.'" Aragon, 221 Ariz. 88, ¶ 5, 210 P.3d at 1261, quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006). In weighing these competing interests, courts consider
whether other continuances were granted; whether the defendant had other competent counsel prepared to try the case; the convenience or inconvenience to the litigants, counsel, witnesses, and the court; the length of the requested delay; the complexity of the case; and whether ...