State v. Lua ( 2014 )


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  •                                IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Appellee,
    v.
    CHRISTEPHER E. LUA, Appellant.
    No. 1 CA-CR 12-0819
    FILED 07-29-2014
    Appeal from the Superior Court in Mohave County
    No. S8015CR20100834
    The Honorable Steven F. Conn, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Linley Wilson
    Counsel for Appellee
    Mohave County Legal Advocate, Kingman
    By Jill L. Evans
    Counsel for Appellant
    OPINION
    Judge Margaret H. Downie delivered the opinion of the Court, in which
    Presiding Judge Kent E. Cattani and Judge Michael J. Brown joined.
    STATE v. LUA
    Opinion of the Court
    D O W N I E, Judge:
    ¶1             Christepher Lua appeals his convictions and sentences for
    attempted manslaughter, aggravated assault, misconduct involving
    weapons, and assisting a criminal street gang. He raises several issues, all
    but one of which we resolve in a separate memorandum decision
    pursuant to Arizona Rule of Criminal Procedure 31.26. In this opinion, we
    address Lua’s contention he was improperly convicted of a crime that is
    not a lesser-included offense of the charged offense. For reasons that
    follow, we hold that so-called “provocation manslaughter,” see A.R.S.
    § 13-1103(A)(2), is a lesser-included offense of second degree murder. We
    therefore affirm Lua’s attempted manslaughter convictions.
    FACTS AND PROCEDURAL HISTORY1
    ¶2            D.G. and D.C. were leaving a convenience store when Lua
    and other men gathered around a nearby car began verbally taunting
    them. Events progressed quickly to a physical altercation. D.G. and D.C.
    returned to their vehicle. After hearing someone yell “coward,” D.C.
    gestured as if he were grabbing something from his car and ran back
    toward the other vehicle, where Lua was now in the driver’s seat. D.C.’s
    hand was behind his back as he approached.               When D.C. was
    approximately two feet away, Lua shot him. D.G. then ran toward Lua
    and began grabbing his arm and hitting him. Lua shot D.G. before
    fleeing. During a police interview, Lua admitted shooting D.C. several
    times but said that he did so because he believed D.C. had a gun and “was
    going to shoot us.”
    ¶3             Lua was originally charged with two counts of attempted
    first degree murder (counts 1 and 2); two counts of aggravated assault
    (counts 3 and 4); and one count of assisting a criminal street gang (count
    5). His first trial ended in a mistrial. The State subsequently charged Lua
    by separate indictment with one count of misconduct involving weapons
    arising from the same incident and successfully moved to join the charges
    under Rule 13.3. The trial court also granted the State’s unopposed
    motion to amend counts 1 and 2 to reduce the charges to attempted
    second degree murder.
    1      We view the trial evidence in the light most favorable to sustaining
    the jury’s verdicts. See State v. Nelson, 
    214 Ariz. 196
    , 196, ¶ 2, 
    150 P.3d 769
    ,
    769 (App. 2007).
    2
    STATE v. LUA
    Opinion of the Court
    ¶4            At the second trial, the court instructed the jury over Lua’s
    objection regarding the offense of attempted manslaughter upon a sudden
    quarrel or heat of passion resulting from adequate provocation by the
    victim (“provocation manslaughter”), which the court ruled was a lesser-
    included offense of attempted second degree murder. The jury found Lua
    guilty of two counts of attempted manslaughter, two counts of aggravated
    assault, one count of assisting a criminal street gang, and one count of
    misconduct involving weapons. The court sentenced him to concurrent
    and consecutive prison terms.
    ¶5           Lua timely appealed. We have jurisdiction under Article VI,
    Section 9, of the Arizona Constitution and A.R.S. §§ 12–120.21(A)(1),
    13–4031, and –4033(A)(1).
    DISCUSSION
    ¶6             We review de novo whether a crime is a lesser-included
    offense of a charged offense.2 State v. Cheramie, 
    218 Ariz. 447
    , 448, ¶¶ 6-8,
    
    189 P.3d 374
    , 375 (2008). Under the “elements test,” a lesser-included
    offense is one that is comprised solely of some, but not all, elements of the
    greater offense, such that it is impossible to commit the charged crime
    without also committing the lesser one. State v. Hines, 
    232 Ariz. 607
    , 610, ¶
    10, 
    307 P.3d 1034
    , 1037 (App. 2013).
    ¶7          The trial court instructed jurors that the offense of attempted
    second degree murder includes “the less serious crime of Attempted
    Manslaughter.” It further instructed:
    The State may prove Attempted Manslaughter, but fail to
    prove the more serious crime of Attempted Second Degree
    Murder. You are permitted to find the Defendant guilty of
    the less serious crime of Attempted Manslaughter if:
    1. You determine unanimously that the evidence does not
    show beyond a reasonable doubt that the Defendant is guilty
    2      The State contends our review is limited to fundamental error
    because Lua’s trial objections were inadequate to trigger harmless error
    review. We disagree. Lua objected to the lesser-included offense
    instruction based on “the interjection of the extra element,” which the trial
    court clearly understood as questioning whether provocation
    manslaughter is a lesser-included offense of second degree murder.
    3
    STATE v. LUA
    Opinion of the Court
    of Attempted Second Degree Murder or if after reasonable
    efforts you cannot agree unanimously whether to acquit or
    convict on that charge; AND
    2. You determine unanimously that the evidence does show
    beyond a reasonable doubt that the Defendant is guilty of
    Attempted Manslaughter.
    The difference between Attempted Second Degree Murder
    and Attempted Manslaughter is that Attempted
    Manslaughter requires that the Defendant attempted to
    commit the crime of Manslaughter rather than Second
    Degree Murder.
    The crime of Manslaughter has the following elements:
    1. The Defendant committed Second Degree Murder; AND
    2. The Defendant did so upon a sudden quarrel or heat of
    passion resulting from adequate provocation by the victim.
    The court also instructed jurors regarding second degree murder, stating:
    The crime of Second Degree Murder has the following
    elements:
    1. The Defendant caused the death of another person; AND
    2. The Defendant intended or knew that his conduct would
    cause death.
    Lua does not challenge the content of these jury instructions; we therefore
    do not address their substantive adequacy or accuracy.
    ¶8           According to Lua, Peak v. Acuna, 
    203 Ariz. 83
    , 84-85, ¶ 6, 
    50 P.3d 833
    , 834-35 (2002), stands for the proposition that provocation
    manslaughter is not a lesser-included offense of second degree murder.
    We disagree. The defendant in Peak was charged with the first degree
    murder of her husband. 
    203 Ariz. at 84, ¶ 2
    , 
    50 P.3d at 834
    . At trial, jurors
    in Peak were instructed regarding first degree murder, second degree
    murder, and provocation manslaughter. 
    Id.
     The jury acquitted Peak of
    first degree murder and provocation manslaughter but convicted her of
    second degree murder. 
    Id.
     The superior court ordered a new trial, and
    the State sought special action review. Id. at ¶¶ 3-4. The Arizona
    4
    STATE v. LUA
    Opinion of the Court
    Supreme Court rejected Peak’s contention “that because [provocation]
    manslaughter is a lesser-included offense of second-degree murder, her
    acquittal of manslaughter bars the state from retrying her for second-
    degree murder.” Id. at ¶ 5. The court stated:
    [T]he relevant statute in the present case [A.R.S.
    § 13-1103(A)(2)] is unusual. Instead of deleting an element
    of the greater offense, it specifies a different circumstance as
    a requirement to find the lesser offense . . . .
    Id. at ¶ 6. The court explained:
    Defendant’s acquittal of manslaughter does not necessarily
    mean that she did not commit second-degree murder. It
    might well have meant that the jury found Defendant had
    not acted after a sudden quarrel or in the heat of passion.
    This is quite likely, given the fact that the victim was shot in
    his sleep and that the jury convicted on the second-degree
    murder charge.
    Id. at 84-85, ¶ 6, 
    50 P.3d at 834-35
    . The court ruled that double jeopardy
    principles did not bar retrying Peak for second degree murder. 
    Id.
    ¶9             Peak did not suggest, let alone hold, that the “different
    circumstance” existing for provocation manslaughter is an element of the
    offense over and above those necessary to prove second degree murder.
    Black’s Law Dictionary 597 (9th ed. 2009) defines “elements of crime” as
    “[t]he constituent parts of a crime — usu. consisting of the actus reus,
    mens rea, and causation — that the prosecution must prove to sustain a
    conviction.” Unlike a true element of a charged offense, it is not the
    State’s burden to prove “a sudden quarrel or heat of passion resulting
    from adequate provocation by the victim.” A.R.S. § 13-1103(A)(2). The
    existence of this “different circumstance,” Peak, 
    203 Ariz. at 84, ¶ 6
    , 
    50 P.3d at 834
    , is a question of fact for the jury to determine based on the evidence
    presented, cf. State v. Young, 
    192 Ariz. 303
    , 307, ¶¶ 13, 16, 
    965 P.2d 37
    , 41
    (App. 1998) (under statute making exception for firearms in “permanently
    inoperable condition,” whether a given weapon was permanently
    inoperable is a question of fact. “Operability of the weapon is not an
    element of the offense of knowingly possessing a prohibited weapon.”).
    ¶10          In State v. Kamai, 
    184 Ariz. 620
    , 
    911 P.2d 626
     (App. 1995), we
    considered whether unlawful use of a means of transportation is a lesser-
    included offense of theft of an automobile.            The statute under
    consideration stated that unlawful use of a means of transportation occurs
    5
    STATE v. LUA
    Opinion of the Court
    when, “without intent permanently to deprive,” a person knowingly takes
    unauthorized control over another’s means of transportation. 
    184 Ariz. at 622
    , 
    911 P.2d at 628
    . The phrase “without intent permanently to deprive”
    did not appear, though, in the relevant theft statute, which prohibited
    controlling property of another “with the intent to deprive him of such
    property.” 
    Id.
     This Court held that the phrase “without intent to
    permanently deprive” in the unlawful use statute did not “describe an
    element of the crime which the state must prove.” 
    Id.
     Instead, it simply
    distinguished unlawful use from the offense of auto theft. 
    Id.
     By way of
    analogy, we noted that first degree murder is homicide “with
    premeditation.” 
    Id. at 623
    , 
    911 P.2d at 629
    . Second-degree murder, a
    lesser-included offense, is homicide “without premeditation.”         
    Id.
    However, “[p]roper jury instructions on second-degree murder do not list
    ‘without premeditation’ as an element of the offense that the state must
    prove.” 
    Id.
    ¶11         Similarly, a “sudden quarrel or heat of passion resulting
    from adequate provocation by the victim” distinguishes the offense of
    provocation manslaughter from second degree murder. As in Kamai, the
    phrase does not “describe an element of the crime which the state must
    prove.” 
    Id. at 622
    , 
    911 P.2d at 628
    . Provocation manslaughter is
    comprised solely of elements of the greater offense of second degree
    murder.
    ¶12           Lua does not contend the trial evidence was insufficient for
    jurors to find the “different circumstance” of “sudden quarrel or heat of
    passion resulting from adequate provocation by the victim.” A.R.S.
    § 13-1103(A)(2); see Kamai, 
    184 Ariz. at 622
    , 
    911 P.2d at 628
     (“The propriety
    of giving a jury instruction on a lesser included offense depends upon
    whether the offense is a lesser included offense of the crime charged and
    whether the evidence supports the giving of the instruction.”). Under the
    facts of this case, the trial court properly instructed the jury regarding
    attempted provocation manslaughter as a lesser-included offense of
    attempted second degree murder.
    6
    STATE v. LUA
    Opinion of the Court
    CONCLUSION
    ¶13           For the reasons stated, we affirm Lua’s convictions and
    sentences for two counts of attempted manslaughter.
    :gsh
    7
    

Document Info

Docket Number: 1 CA-CR 12-0819

Judges: Downie, Cattani, Brown

Filed Date: 7/29/2014

Precedential Status: Precedential

Modified Date: 11/2/2024