Opinion
No. 1 CA-CR 19-0052
01-28-2020
STATE OF ARIZONA, Appellee, v. RICHARD MOLINA LUZANIA, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Office of the Legal Advocate, Phoenix By Grace M. Guisewite Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2013-110974-001 DT
The Honorable Susan M. Brnovich, Judge (Retired)
The Honorable Danielle J. Viola, Judge
AFFIRMED IN PART/REVERSED AND REMANDED IN PART
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee Office of the Legal Advocate, Phoenix
By Grace M. Guisewite
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the decision of the Court, in which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani joined. McMURDIE, Judge:
¶1 Following a jury trial, Richard Luzania was convicted of several crimes, including first-degree murder and conspiracy to commit first-degree murder. He appeals, asserting that his conspiracy conviction should be set aside because the court gave an incorrect jury instruction. For the following reasons, we reverse the conspiracy conviction and corresponding sentence and remand for a new trial on that count. We affirm Luzania's other convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to upholding the verdict and resolve all reasonable inferences against Luzania. State v. Burgess, 245 Ariz. 275, 277, ¶ 3 (App. 2018). --------
¶2 Luzania and A.G. dated on and off for more than three years before A.G. broke up with Luzania in early 2013 after giving birth to their son. Luzania tried to reconcile with A.G. to no avail. Unlike their previous breakups, A.G. stopped returning Luzania's calls and began dating someone else—F.V. On the night of March 5, 2013, after sending A.G. a series of messages pleading with her to talk to him and begging to see his son, Luzania showed up at A.G.'s apartment banging on her door around midnight. When A.G. refused to let him inside, Luzania attempted to kick the door in—as he had done in the past. Still unable to open the door, Luzania eventually left but continued sending A.G. angry messages stating his suspicion that F.V. was in the apartment with her.
¶3 Luzania picked up his friend Christian Arguelles, and the two men returned to A.G.'s apartment around 2:30 a.m. They placed tape over the peephole on A.G's door so she could not see who was outside. After threatening to call the police, A.G. eventually opened the door. Luzania and Arguelles rushed inside, and an altercation ensued that ended with Luzania shooting and killing both A.G. and F.V. Luzania and Arguelles fled the apartment leaving Luzania's five-month-old son asleep in his crib on the other side of the bed from where A.G.'s body lay.
¶4 Within hours of the homicide, police arrested Luzania and he confessed to killing A.G. and F.V. The State charged Luzania with: (1) two counts of first-degree murder; (2) one count of armed robbery; (3) two counts of kidnapping; (4) one count of burglary in the first degree; and (5) one count of conspiracy to commit first-degree murder.
¶5 Before the conclusion of the eleven-day trial, the State offered its proposed jury instructions, to which Luzania did not object. Those instructions were provided to the jury and included the following instruction regarding the conspiracy charge:
The crime of conspiracy to commit First Degree Murder requires proof:The court also instructed the jury on the elements of both premeditated and felony first-degree murder.
1. The defendant agreed with one or more persons that one of them or another person would engage in certain conduct; and
2. The defendant intended to promote or assist in the commission of such conduct; and
3. The intended conduct would constitute a crime.
¶6 The jury returned its verdicts the next day, finding Luzania guilty on all counts except armed robbery. Concerning the first-degree murder counts, only ten jurors found Luzania premeditated the murders. But all twelve agreed that he was guilty of felony murder. The court sentenced Luzania to natural life sentences for the two first-degree murder convictions; 10.5 years' imprisonment for each of the two kidnapping convictions and the burglary conviction; and imprisonment for life, with the possibility of release after 25 years, for the conspiracy to commit first-degree murder conviction. The superior court ordered the kidnapping, burglary, and conspiracy sentences to run concurrently with the first natural life sentence and each other, and the second natural life sentence to run consecutive to the first.
¶7 Luzania appealed, and we have jurisdiction under Arizona Revised Statutes ("A.R.S.") sections 12-120.21, 13-4031, and -4033.
DISCUSSION
¶8 The only issue Luzania raises is whether the superior court improperly instructed the jury regarding the elements of conspiracy, arguing that the instruction was deficient because it did not indicate that conspiracy to commit first-degree murder is a specific-intent crime that requires an intent to kill. When a defendant fails to object to an alleged trial error, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). The scope of review is limited in that we will not reverse unless Luzania shows that: (1) there was an error; (2) the error was fundamental; and (3) the error was prejudicial. State v. Escalante, 245 Ariz. 135, 140, 142, ¶¶ 12, 21 (2018).
A. The Jury Instruction Error Was Fundamental.
¶9 Concerning whether an error occurred, the State "agrees that the instruction should have been more specific," see State v. Anderson, 210 Ariz. 327, 346, ¶ 73 (2005) ("[T]he jury should have been instructed that intent to kill is an element of conspiracy to commit first-degree murder."), but argues "Luzania fails to carry his burden of proving that the error is both 'fundamental' and 'prejudicial.'" Generally, an error that relieves the prosecution of its burden to prove each element of a crime goes to the foundation of the case and is considered fundamental; but when determining whether fundamental error occurred, "the court should consider the totality of the circumstances." Escalante, 245 Ariz. at 141, 142, ¶¶ 18, 21. Here, the instruction relieved the State from proving that Luzania had the requisite intent to kill—which is an element of conspiracy to commit first-degree murder.
¶10 "Under Arizona law, a conviction for first-degree murder can be based on either or both of two theories: premeditated murder (an intentional, planned killing) or felony murder (a killing that results from the intentional commission by [a] defendant of another felony, but which does not necessarily involve an intent to kill)." Evanchyk v. Stewart (Evanchyk II), 340 F.3d 933, 935 (9th Cir. 2003). However, to convict a defendant for conspiracy to commit first-degree murder, the State must prove the defendant possessed an intent to kill or to promote or aid in the killing and made an agreement to kill. Evanchyk v. Stewart (Evanchyk I), 202 Ariz. 476, 481, ¶ 18 (2002). An intent to commit the predicate felony is insufficient to sustain a conspiracy to commit first-degree murder conviction.
¶11 "The instructions on conspiracy to commit first-degree murder omitted the element of intent to kill. Nowhere does the instruction say that intent to kill or premeditation is required." Evanchyk II, 340 F.3d at 939. Instead, it refers to the conspired crime as conduct, which constitutes "a crime." Under these circumstances, the erroneous jury instruction amounts to fundamental error because "a defendant may not be convicted of conspiracy to commit first-degree murder if he had merely the requisite intent to commit the underlying felony." Evanchyk I, 202 Ariz. at 481, ¶ 18. Because "felony murder was a theory of first-degree murder in this case," and "the generic conspiracy instruction omitted the element of intent to kill," Evanchyk II, 340 F.3d at 940, it did not adequately inform the jurors of the State's burden. But see id. at 939 ("In a case where felony murder was not a viable theory of first-degree murder—that is, where first-degree murder could only be of the premeditated variety—the conspiracy instruction used here would not pose a problem. In such a case, it would be unequivocal that the 'conduct' cross-referenced in the conspiracy instruction was the conduct identified in the one and only first-degree murder theory."). Thus, the jury instruction violated Luzania's right to have a jury determine his guilt as to every element of the crime. See id. at 940; see also State v. Ruiz, 236 Ariz. 317, 322, ¶ 12 (App. 2014); State v. Kemper, 229 Ariz. 105, 107, ¶ 5 (App. 2011).
B. The Error Was Prejudicial.
¶12 Having shown that fundamental error occurred, Luzania must also show that it was prejudicial. An error is prejudicial if the defendant establishes that absent the error, "a reasonable jury could have reached a different verdict." Escalante, 245 Ariz. at 144, ¶ 29 (quotation and alterations omitted). "In applying the 'could have' standard, an appellate court should examine the entire record, including the parties' theories and arguments as well as the trial evidence." Id. ¶ 31. After reviewing the instructions and the parties' arguments, in this case, we conclude that because of the erroneous instruction the jury could—and likely did—convict Luzania "for, in effect, conspiracy to commit felony murder, which is not a crime under Arizona law." Evanchyk II, 340 F.3d at 935.
¶13 The State concedes that if the jurors had "somehow concluded that Luzania and Arguelles conspired to commit either armed robbery, burglary in the first degree, or kidnapping" it would constitute reversible error, but that in this case the possibility that the jury reached such conclusion "is simply not feasible" because "the arguments of counsel made it crystal clear that [the jury] had to find an intent to kill." Despite the State's contention, the record does not reflect a "crystal clear" understanding that conspiracy to commit first-degree murder requires the intent to kill and premeditation.
¶14 The State's argument is premised on the following statements. After the superior court read the generic conspiracy instruction, it charged the jury with both premeditated and felony murder without distinguishing that a conviction for conspiracy to commit first-degree murder could only be based on premeditated murder. The State's closing argument contributed to the problem.
The Defendant is also charged with conspiracy to commit first-degree murder. The elements again are laid out for you within your jury instructions. The Defendant agreed with one or more persons that one of them would engage in certain conduct. The Defendant intended to promote or assist in the commission of that conduct, and that intended conduct would constitute a crime."(Emphasis added.)
¶15 In its closing, the defense stated: "Did [Luzania] go over there with intent to murder [A.G.]? Did he conspire and plan to go over there and murder [A.G.]? Because that's what the State is telling you," also mentioning that "there is no evidence of conspiracy to commit murder and there is no evidence that [Luzania] premeditated this murder, that that was his intent to go over to that house to kill." The State concluded with: "Conspiracy. The Defendant and Christian Arguelles working together to go over to that apartment to kill [F.V. and A.G.]. There doesn't have to be a written agreement. If two people are going to rob a bank, you don't have to sign a contract. Person A, Person B, do we agree to go commit a crime? Yes, we do, and then we go commit that crime. That's conspiracy."
¶16 We disagree with the State that "[g]iven the arguments of counsel, it would be speculative in the extreme to entertain the notion that the jurors failed to find an intent to kill." Rather, we agree with the court in Evanchyk II, which concluded
[W]here felony murder was argued as a basis to find first-degree murder, the generic conspiracy instruction was insufficient. By defining "first-degree murder" as either premeditated murder or felony murder, and then, in the separate conspiracy instruction, defining "conspiracy to commit first-degree murder" in generic terms as a conspiracy to engage in "conduct" which constitutes "first-degree
murder," the instructions could cause a jury to rely upon felony murder as the predicate offense for the conspiracy conviction.340 F.3d at 939. The instruction here was even more ambiguous. It stated that the State must prove that the defendant intended to engage in conduct that "would constitute a crime."
¶17 The verdicts also support our conclusion that the jury could have reached a different verdict if correctly instructed. The jury could have convicted Luzania of premeditated murder only if it found, beyond a reasonable doubt, that Luzania caused the death of A.G. or F.V. "[i]ntending or knowing that [his] conduct w[ould] cause death . . . with premeditation." See A.R.S. § 13-1105(A)(1). Felony murder, in contrast, requires that Luzania or Arguelles caused A.G.'s or F.V.'s death "in the course of and in furtherance of [one of the enumerated offenses, including kidnapping and burglary]." See A.R.S. § 13-1105(A)(2). The jury convicted Luzania of kidnapping and burglary, either of which was sufficient to convict Luzania of felony first-degree murder.
¶18 However, "conspiracy to commit first-degree murder cannot be proved without establishing that the defendant premeditated by forming an intent to promote or aid in killing and making an agreement to kill." Evanchyk I, 202 Ariz. at 481, ¶ 17. "By definition, then, [Luzania and Arguelles] would have premeditated the killing." Id. ¶ 16. Here, the jurors only unanimously convicted Luzania of felony murder rather than premeditated murder. The jury arguably distinguished between the crimes based on Luzania's lack of intent to kill or the absence of premeditation. C.f. Henderson, 210 Ariz. at 569, ¶ 30. But see Anderson, 210 Ariz. at 345, ¶ 72 (providing the generic conspiracy instruction was harmless when the jury found the defendant guilty of premeditated first-degree murder).
¶19 Not only could a reasonable jury have reached a different verdict, "[i]t is reasonably probable that the failure to identify intent to kill as a necessary element of the conspiracy charge substantially influenced the verdict." Evanchyk II, 340 F.3d at 941. (quotation and alterations omitted). "At the least, we are in grave doubt as to whether the error resulted in [Luzania] being convicted without the jury having first found intent to kill." Id. (quotation omitted).
CONCLUSION
¶20 Accordingly, we reverse Luzania's conviction and sentence for conspiracy to commit first-degree murder and remand for a new trial on that count. All other convictions and sentences are affirmed.