Opinion
No. 2 CA-CR 2018-0328-PR
02-06-2019
THE STATE OF ARIZONA, Respondent, v. ARMANDO LOPEZ, Petitioner.
COUNSEL Law Offices of Erin E. Duffy P.L.L.C., Tucson By Erin E. Duffy Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pima County
No. CR20120450001
The Honorable Deborah Bernini, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Law Offices of Erin E. Duffy P.L.L.C., Tucson
By Erin E. Duffy
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Brearcliffe concurred.
STARING, Presiding Judge:
¶1 Armando Lopez seeks review of the trial court's order denying, after an evidentiary hearing, his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Lopez has not shown such abuse here.
¶2 In 2012, Lopez killed his girlfriend after finding a letter she had written to her former boyfriend. After the victim's daughter found him beating her, she pushed him off the victim and ran to call the police. While the daughter was on the phone with 9-1-1 for a period of five minutes, Lopez resumed his attack on the victim, pausing at one point to "poke his head out" the front door to look around, after which he returned into the home, closed the door, retrieved a steak knife, and stabbed her fifteen times. Additionally, Lopez sliced the victim with the knife and choked her; asphyxiation was a contributing factor to her death. At trial, Lopez testified that, after the victim had grabbed the letter from him, she began to reach for a knife, and he responded by reaching for the knife as well; he stated he then "blacked out" while they fought over the knife and had no recollection of killing her. Lopez was convicted of first-degree murder and sentenced to life in prison. We affirmed his conviction and sentence on appeal. State v. Lopez, No. 2 CA-CR 2013-0365 (Ariz. App. July 30, 2014) (mem. decision).
¶3 Lopez sought post-conviction relief, claiming his trial counsel had failed to adequately communicate with him and prepare him to testify at trial. He claimed counsel had only visited him in person twice, for a total of twenty-six minutes and did not tell him "the defense was not putting forward a self-defense argument." The trial court held an evidentiary hearing at which Lopez, his trial and appellate counsel, and his mitigation specialist testified. During his testimony, Lopez asserted counsel had limited contact with him and did not explain "what to expect" when he testified or conduct "a pretend cross-examination," and he did not understand "what the defense would be at the time of trial." He
acknowledged, however, that counsel had talked to him "about the significance of explaining to the jury the rage [he had] felt" at the time he murdered his girlfriend.
¶4 The mitigation specialist testified that she had discussed with Lopez whether self-defense was "a viable or valid defense" and she had advised him it was not. Trial counsel also testified that he had informed Lopez that "heat of passion, certainly not self-defense," was "the only viable defense" in his case. He also stated he had talked to Lopez about what his testimony would be and told him he had "to explain the jealous rage he was [in] and his state of mind and the fact he said something about blacking out and losing it." Counsel further stated he had explained to Lopez he would ask questions consistent with "what [they had] been going over" and, during cross-examination, he should "[k]eep [his] answers as short as possible. Don't try to explain things and I'll take care of that on redirect. Just tell the truth."
¶5 The trial court denied relief. It found that Lopez had not shown his decision to testify that he had acted in self-defense "was the fault of his attorney." The court thus concluded that Lopez had not demonstrated that counsel had fallen below prevailing professional norms and, additionally, that he had failed to prove resulting prejudice given that the evidence of premeditation was overwhelming. This petition for review followed.
¶6 On review, Lopez again asserts that his counsel's "meeting with [him] in person for 26 minutes" constituted ineffective assistance and repeats his claim that he was inadequately prepared to testify. To be entitled to relief on this claim, Lopez must have shown both "that counsel's conduct fell below prevailing professional norms and that he was prejudiced thereby." State v. Denz, 232 Ariz. 441, ¶ 6 (App. 2013) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
¶7 We agree with the trial court that Lopez has not established defense counsel's performance was deficient. He has cited no authority or evidence suggesting there is a minimum amount of time defense counsel must spend with a defendant in order to be effective. Nor has he cited authority or evidence supporting his claim that any competent attorney would have done more to prepare him to testify. See State v. Herrera, 183 Ariz. 642, 647 (App. 1995) (rejecting ineffective-assistance claim "in the absence of evidence that [counsel's conduct] fell below prevailing professional norms").
¶8 We also agree with the trial court that Lopez has not established prejudice. To do so, he was required to prove that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Notably, Lopez has not explained in any detail how his testimony would have differed had counsel spent more time preparing him. Other than presumably omitting his testimony that the victim had been reaching for a knife over which they had then fought, Lopez has identified no other information he would have omitted, any he would have provided instead, or identified any specific questions he would have answered differently.
¶9 Additionally, as the trial court noted, a jury was unlikely to conclude Lopez had acted in the heat of passion irrespective of his testimony. To conclude Lopez committed first-degree murder, the jury was required to conclude he acted with premeditation, see A.R.S. § 13-1105(A)(1), that is, he acted "with either the intention or the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by any length of time to permit reflection," A.R.S. § 13-1101(1); see also State v. Thompson, 204 Ariz. 471, ¶ 31 (2003) ("[T]he evidence, whether direct or circumstantial, must convince a jury beyond a reasonable doubt that the defendant actually reflected."). The murder is not premeditated, however, "if it is the instant effect of a sudden quarrel or heat of passion." § 13-1101(1).
¶10 The evidence shows Lopez first attacked the victim, then acquired a knife with which to murder her after that initial attack was interrupted by her daughter. See State v. Neal, 143 Ariz. 93, 98 (1984) (decision to retrieve weapon indicates premeditation). This "prolonged, brutal attack" by various means—hitting, choking, slicing, and stabbing—strongly supports a finding of premeditation. See State v. VanWinkle, 230 Ariz. 387, ¶ 16 (2012).
¶11 We grant review but deny relief.