Opinion
No. 1 CA-CR 12-0532
01-16-2014
STATE OF ARIZONA, Appellee, v. FRANCISCO CORRALES, Appellant.
Arizona Attorney General's Office, Phoenix By Linley Wilson Counsel for Appellee Maricopa County Legal Advocate's Office, Phoenix By Colin F. Stearns Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2010-129130-001
The Honorable Sherry K. Stephens, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Legal Advocate's Office, Phoenix
By Colin F. Stearns
Counsel for Appellant
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined. GEMMILL, Judge:
¶1 Francisco Corrales appeals from his convictions of and sentences for attempted second-degree murder and misconduct involving weapons. We affirm his convictions and sentences.
BACKGROUND
¶2 In June 2010, Corrales and two friends, J.B. and M.A, were driving to a liquor store when they spotted another car in which F.V., the victim, was riding. At trial, M.A. testified that Corrales and F.V. had fought in the past and all were aware that F.V. was accused of inappropriately touching Corrales's younger sister. J.B., who was driving the car in which Corrales rode, turned around to follow F.V.'s car. Eventually, the two cars stopped on a public street, and a fist-fight occurred between F.V. and J.B. After being struck multiple times, F.V. ran and picked up a nearby rock, which he threw at J.B.
¶3 As this happened, Corrales brandished a handgun. Corrales fired one shot at F.V., hitting him in the head. At various points in his trial testimony, M.A. recalled that Corrales shot F.V. "as soon as he threw" the rock, "after he hit [J.B.]" with the rock, and "immediately after" F.V. threw the rock. J.B. testified that he heard a gunshot as F.V. threw the rock. A police officer, however, testified that J.B. told him during an interview after the shooting that F.V. said something to Corrales after throwing the rock but before being shot. F.V. survived, but suffered brain swelling, paralysis on the right side of his body, and memory loss.
¶4 A jury convicted Corrales of attempted second-degree murder, a class 2 felony, and misconduct involving weapons, a class 4 felony. The trial court granted Corrales's motion to file a delayed notice of appeal in accordance with Arizona Rule of Criminal Procedure 32.1(f), the delayed notice of appeal was timely, and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 13-4031, -4033, and 12-120.21(A)(1).
ANALYSIS
I. "Justification" jury instruction pursuant to A.R.S. § 13-411
¶5 Corrales first argues that he was entitled to a jury instruction on justification for the use of force in crime prevention under A.R.S. § 13-411. Corrales asserts that fundamental error occurred because the trial court declined to give the instruction in reliance on a court of appeals opinion that had been depublished by the Arizona Supreme Court.
¶6 After closing arguments and before giving the final jury instructions, the trial court noted, outside the presence of the jury, that "We need to update the record with regard to jury instructions. The State came in with a case today [State v. Haney, 223 Ariz. 64, 219 P.3d 274 (App. 2009)], reviewed, April 6, 2010. As a result of reading this opinion the Court deleted the crime prevention instruction[.]" Corrales did not object. Instructions based on A.R.S. § 13-406, justification for defense of a third person, and A.R.S. § 13-417, necessity defense, were given to the jury.
¶7 Because Corrales did not object to the removal of the justification for crime prevention jury instruction, our review is limited to fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, [or] error of such magnitude that the defendant could not possibly have received a fair trial." Id. A defendant is entitled to jury instructions on any theory reasonably supported by the evidence. State v. Anderson, 210 Ariz. 327, 343, ¶60, 111 P.3d 369, 385 (2005). If fundamental error occurred, to obtain relief, a defendant must also show prejudice as a result of the error. Henderson, 210 Ariz. at 567-68, ¶20, 155 P.3d at 607-08. Prejudice results when a defendant shows there is reasonable probability under the facts of the case that the verdict might have been different had the error not been committed. See State v. Zaragoza, 135 Ariz. 63, 67, 659 P.2d 22, 26 (1983) (explaining that fundamental error is harmless when there is "no reasonable probability" of a different result).
¶8 Because the Arizona Supreme Court denied review on Haney but ordered the Court of Appeals opinion depublished, that decision was no longer valid authority when the jury instructions were finalized. See State v. Haney, 224 Ariz. 389, 231 P.3d 921 (2010). Additionally, it appears that the justification for crime prevention instruction was reasonably supported by the evidence and should have been given. We need not decide if the failure to give that instruction was fundamental error, however, because any such error was not prejudicial. The presumption of reasonableness found in A.R.S. § 13-411 was rebutted and thereby eliminated when the State proved beyond a reasonable doubt that Corrales's actions were not in accordance with the justification for defense of a third person under A.R.S. § 13-406.
¶9 In relevant part, § 13-411 establishes that "[a] person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary" to prevent certain specified crimes, including aggravated assault as defined in A.R.S. § 13-1204(A)(1)-(2). Additionally, the statute provides that "[a] person is presumed to be acting reasonably" if acting to prevent one of the listed crimes. Subsection (D), which was added to the statute in 2006, notes that "[t]his section includes the use or threatened use of physical force or deadly physical force in a person's home, residence, place of business, land the person owns or leases, conveyance of any kind, or any other place in this state where a person has a right to be." At the time of Corrales's alleged offenses, subsection D stated that § 13-411's application "is not limited to the use or threatened use of physical or deadly physical force in a person's home, residence, place of business, land the person owns or leases, conveyance of any kind, or any other place in this state where a person has a right to be." A.R.S. § 13-411(D) (2010) (emphasis added). Because the public street was presumably a place where Corrales had "a right to be," we cannot conclusively say that the statute did not apply in situations such as this. When a statute can be reasonably interpreted in more than one way, our supreme court instructs that any "doubt should be resolved in favor of the defendant." Hughes v. Jorgenson, 203 Ariz. 71, 75, ¶19, 50 P.3d 821, 825 (2002) (quoting State v. Tarango, 185 Ariz. 208, 210, 914 P.2d 1300, 1302 (1996) (superseded by statute on other grounds)).
¶10 We disagree with the State that an instruction under A.R.S. § 13-411 was not supported by the evidence because "the only reasonable view of the evidence at trial is that [Corrales] fired his gun after [F.V] threw the rock at [J.B.]." Multiple witnesses gave conflicting testimony about when the rock was thrown in relation to Corrales shooting at F.V., and the jury, as the fact-finder, could have chosen to believe that the shot was fired in the course of F.V. throwing the rock. Regardless of the probability that the jury may have believed one version of events over another, Corrales was entitled to jury instructions on any theory reasonably supported by the evidence. Anderson, 210 Ariz. at 343, ¶60, 111 P.3d at 385. The court erred in not giving the instruction.
¶11 Nonetheless, Corrales has not shown prejudice. He argues that by not receiving the instruction, he was prevented from "presenting a full defense" because the presumption of reasonableness found in § 13-411(C) was the foundation of his defense. But Corrales does not acknowledge that to overcome the evidence that Corrales acted in accordance with § 13-406, the State was required to prove beyond a reasonable doubt that Corrales was not justified in his actions. See A.R.S. § 13-205(A). The evidence that the State presented to overcome the evidence of justification in accordance with § 13-406 was the same evidence that would have rebutted the presumption of reasonableness in § 13-411(C). Our case law confirms that the § 13-411(C) presumption of reasonableness is a rebuttable presumption. Korzep v. Superior Court, 172 Ariz. 534, 539, 838 P.2d 1295, 1300 (App. 1991). Rebuttable presumptions "vanish" in the face of contradictory evidence. Id.; State v. Arellano, 213 Ariz. 474, 477-78, ¶ 11, 143 P.3d 1015, 1018-19 (App. 2006); see also State v. Grilz, 136 Ariz. 450, 455-56, 666 P.2d 1059, 1064-65 (1983) (affirming that a rebuttable presumption "is not in and of itself evidence, but merely an arbitrary rule imposed by the law, to be applied in the absence of evidence, and whenever evidence contradicting the presumption is offered the latter disappears entirely" (quoting Seiler v. Whiting, 52 Ariz. 542, 548-49, 84 P.2d 452, 454-55 (1938))).
¶12 As part of the § 13-406 instruction, the trial court told the jury:
If evidence was presented that raised the justification defense of "defense of a third person" for Attempted First Degree Murder or the lesser included offense of Second Degree Murder, then the State has the burden of proving beyond a reasonable doubt that the defendant did not act with such justification. If the State fails to carry this burden, then you must find the defendant not guilty of the charge.Having received this instruction and having returned a guilty verdict for attempted second degree murder, the jury necessarily believed that the State proved beyond a reasonable doubt that Corrales's actions were not justified under A.R.S. § 13-406. On this record, we conclude that such a verdict also means that the jury necessarily considered evidence that contradicted any evidence of justification for crime prevention, thereby effectively rebutting the presumption of reasonableness found in § 13-411(C).
¶13 We acknowledge that, in certain circumstances, a justification defense under § 13-411 is unique and separate from other justification defenses. See State v. Garfield, 208 Ariz. 275, 279, ¶ 15, 92 P.3d 905, 909 (App. 2004) (observing that "§ 13-411 presents a unique defense"). In this case, however, Corrales's stated reason for seeking an instruction under § 13-411 was to ensure the jury considered his actions under a presumption of reasonableness. Because the jury essentially did so, even without the express instruction, Corrales has failed to show prejudice. Additionally, the fact that the presumption was rebuttable and disappeared entirely in the face of adverse evidence further supports our conclusion that Corrales has not established the requisite prejudice to support a reversal for fundamental error.
II. Sentencing Enhancement Issue
¶14 Corrales argues that he received illegal sentences because the trial court improperly enhanced his sentences pursuant to A.R.S. § 13-708(D) by finding that he committed the offenses while on felony release. Corrales argues that finding he was on felony release at the time of these felony offenses "is a functional equivalent of an element of a greater offense and must be submitted to a jury," relying on this court's opinion in State v. Gross, 201 Ariz. 41, 31 P.3d 815 (App. 2001). Corrales contends that because the State did not submit evidence of felony release to a jury and because the record lacks sufficient evidence to show that he was actually on felony release at the time of the offenses, the trial court erred in enhancing his sentences based on § 13-708(D).
¶15 Before sentencing, Corrales filed a supplemental sentencing memorandum that "acknowledge[d] that the minimum sentence to which [Corrales] can be sentenced pursuant to ARS 13-708(D) is nine years." In relevant part, § 13-708(D) states:
A person who is convicted of committing any felony offense that is committed while the person is released on bond or on the person's own recognizance on a separate felony offenseBefore sentencing, the State submitted a presentence recommendation that based the possible range of sentences on §§ 13-702(D) and -704(A) but with two years added to each applicable range, relying on § 13-708(D). The trial court ultimately sentenced Corrales to 13 years for dangerous attempted second degree murder and a concurrent sentence of 4.5 years for dangerous misconduct involving weapons. Each sentence was enhanced by two years, in accordance with A.R.S. § 13-708(D), from the presumptive sentences outlined in §§ 13-702(D) and -704(A). Corrales did not object to his sentences, and we therefore review the sentences for fundamental error. State v. Avila, 217 Ariz. 97, 99, ¶ 8, 170 P.3d 706, 708 (App. 2007).
or while the person is escaped from preconviction custody for a separate felony offense shall be sentenced to a term of imprisonment two years longer than would otherwise be imposed for the felony offense committed while on release.
Section 13-704(A) provides that sentences for a class 2 felony are: minimum - 7 years; presumptive 10.5 years; maximum - 21 years. The State's calculation added two years to each possible sentence, with a recommendation that the trial court impose an aggravated sentence of 14 years for attempted second degree murder. Section 13-702(D) provides that sentences for a class 4 felony are: mitigated - 1 year; minimum - 1.5 years; presumptive 2.5 years; maximum - 3 years; aggravated - 3.75 years. As with the attempted second degree murder conviction, the State's calculation of possible sentences added two years to each range and recommended a presumptive sentence of 4.5 years.
¶16 Before 2000, the Arizona Supreme Court's opinion in State v. Hurley controlled on the issue of who determines a defendant's "release status," holding that "release status is a sentence-enhancing factor which may be found by the judge and need not be proved beyond a reasonable doubt." 154 Ariz. 124, 130, 741 P.2d 257, 263 (1987). That holding has since come into doubt. Corrales relies on our opinion in State v. Gross, which expressly held that the Supreme Court of the United States' opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000), required "that a defendant's release status . . . be determined by a jury beyond a reasonable doubt." Gross, 201 Ariz. at 45, ¶ 19, 31 P.3d at 819. Likewise, the Gross court concluded that Hurley "cannot control our analysis and will not support the contention that Apprendi has no application to release status[.]" Id. at ¶16.
¶17 We agree that Gross is persuasive that "felony release" status should be found by a jury in accordance with Apprendi and Arizona case law applying Apprendi. See Henderson, 210 Ariz. at 564, ¶ 5, 115 P.3d at 604; State v. Martinez, 210 Ariz. 578, 583, ¶ 17, 155 P.3d 618, 623 (2005); State v. Price, 217 Ariz. 182, 183, ¶ 1, 171 P.3d 1223, 1224 (2007). Corrales, however, essentially admitted that he was on felony release when he noted that § 13-708(D) applied in his supplemental sentencing memorandum. Our supreme court has recognized that a "defendant can waive his Apprendi rights by stipulating to 'the relevant facts or consenting to judicial factfinding.'" Price, 217 Ariz. at 185, ¶ 10, 171 P.3d at 1226 (quoting Blakely v. Washington, 542 U.S 296, 310 (2004)). Because Corrales admitted that § 13-708(D) applied to his sentencing, he effectively consented to the trial court's determination of whether that statute applied in his sentencing. Moreover, Corrales does not assert that he was not on felony release when he committed the offenses at issue here. See State v. Young, 230 Ariz. 265, 269, ¶ 11, 282 P.3d 1285, 1289 (App. 2012) ("We conclude, however, that the defendant must, at the very least, assert on appeal that he would not have admitted the prior felony convictions had a different colloquy taken place."). Because Corrales consented to the trial court's application of § 13-708(D) to his sentencing, the court did not err when it determined Corrales's felony release status.
III. Jury Instruction on Second Degree Murder
¶18 We note that the jury instruction on attempted second degree murder mentioned "serious physical injury." Although this issue was not raised on appeal, we have considered whether giving such an instruction constituted fundamental, prejudicial error. See State v. Dickinson, 1 CA-CR 12-0479, 2013 WL 6631464, at *6, ¶ 22 (Ariz. App. Dec. 17, 2013) (holding that a jury instruction regarding attempted second degree murder constituted fundamental error but was not prejudicial under Henderson); State v. Ontiveros, 206 Ariz. 539, 542-43, ¶¶ 16-19, 81 P.3d 330, 333-34 (App. 2003) (holding that a similar jury instruction constituted fundamental error, pre-Henderson). Without determining whether the giving of this instruction constituted fundamental error, we conclude that no reversible error has occurred because Corrales cannot establish the requisite prejudice under Henderson. The State's consistent theory of the case was that Corrales intended to kill F.V. Corrales was indicted on attempted first degree murder, and the State argued that the jury should find Corrales guilty of the first degree offense. Corrales's defense was justification, not that he intended to merely injure — but not kill — F.V. During closing arguments, neither party discussed the "serious physical injury" option. On this record, the reference in the instruction to "serious physical injury" was not prejudicial. Therefore, we conclude that no reversible error resulted from the giving of this instruction.
The pertinent instruction provided by the trial court to the jury was:
The crime of attempted Second Degree Murder requires proof that the defendant intentionally committed any act that was a step in a course of conduct that the defendant planned would end in the commission of Second Degree Murder. Second Degree Murder requires proof that the defendant intentionally caused the death of another person by conduct which the defendant knew would cause death or serious physical injury. The difference between Attempted First Degree Murder and Attempted Second Degree Murder is that attempted Second Degree Murder does not require premeditation by the defendant.
CONCLUSION
¶19 For these reasons, we affirm the jury's verdicts and the trial court's sentences.
(Emphasis added.)