Opinion
No. 2 CA-CR 2017-0107
02-28-2018
THE STATE OF ARIZONA, Appellee, v. ENRIQUE ESTRELLA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee Dean Brault, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
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NOT FOR PUBLICATION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). Appeal from the Superior Court in Pima County
No. CR20161759001
The Honorable Janet C. Bostwick, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee Dean Brault, Pima County Legal Defender
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 After a jury trial, appellant Enrique Estrella was convicted of aggravated assault with a deadly weapon or dangerous instrument, a domestic violence offense. The trial court sentenced him to an enhanced, presumptive prison term of 11.25 years. On appeal, Estrella contends the court erred in denying his request for a justification jury instruction on the use of force in crime prevention. Finding no error, we affirm.
Factual and Procedural Background
¶2 "When a trial court refuses a jury instruction, we view the evidence on appeal in the light most favorable to the proponent of the instruction." State v. Almeida, 238 Ariz. 77, ¶ 2 (App. 2015). In April 2016, Estrella's wife's parents had agreed to drive their daughter and Estrella to Tucson for the daughter's psychiatric evaluation in a child-custody matter. As the vehicle slowed at an intersection, Estrella inexplicably "jumped out" of the vehicle while it was still moving. He testified at trial that he had "felt unsafe" because he "thought they were driving recklessly."
¶3 His wife convinced him to return to the vehicle, but when he saw his father-in-law try to engage the rear-door child-safety lock, he refused to re-enter the vehicle. His father-in-law told his mother-in-law to leave him, at which point Estrella's wife became upset and started to "hyperventilat[e] a little bit." According to Estrella, the child-safety lock prevented her from getting out. Estrella punctured a tire on the vehicle with a screwdriver to prevent his mother-in-law from driving away. He testified that he then opened the front passenger door to gain access so that he could open the rear door, and began to stab his father-in-law with the screwdriver.
¶4 Estrella maintained he attacked his father-in-law because he knew his in-laws had a Taser and was "defending" himself because he believed his father-in-law was "going to do something." Estrella's mother-in-law let his wife out of the car, as his father-in-law got out of the vehicle and struggled with Estrella to take the screwdriver. His mother-in-law "buzzed" the couple's Taser to "scare" Estrella, but his father-in-law told her "no" and sent her back to the vehicle. At some point a police officer approached, and Estrella walked away from the truck, telling landscapers who had also stopped that he was "being kidnapped."
¶5 The state charged Estrella with six counts of aggravated assault, and the first trial ended in a mistrial. Before the second trial, the court granted the state's motion to dismiss five of the counts and, following retrial, the jury found Estrella guilty of the remaining count. The court sentenced him as described above. This appeal followed. We have jurisdiction over his appeal pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
Discussion
¶6 Estrella argues the trial court erred by denying his request for a jury instruction on justification for the use of force to prevent the crime of kidnapping. The court gave his requested instruction on self-defense but denied his request for a crime-prevention instruction. It concluded that such an instruction was inappropriate because there was no evidence to suggest the victim had "knowingly restrained" Estrella's wife "with the intent to" place her "in reasonable apprehension of imminent physical injury" as required to commit kidnapping under A.R.S. § 13-1304.
¶7 We review the trial court's refusal to give a requested jury instruction for an abuse of discretion, and we will not reverse "absent a clear abuse of that discretion and resulting prejudice." State v. Ruggiero, 211 Ariz. 262, ¶ 6 (App. 2005). "A defendant is entitled to a justification instruction if it is supported by 'the slightest evidence.' An instruction should not be given, however, 'unless it is reasonably and clearly supported by the evidence.'" Id., quoting State v. Hussain, 189 Ariz. 336, 337 (App. 1997), and State v. Walters, 155 Ariz. 548, 553 (App. 1987). "The slightest evidence—not merely an inference making an argument possible—is required because speculation cannot substitute for evidence." State v. Vassell, 238 Ariz. 281, ¶ 9 (App. 2015).
¶8 Section 13-411(A), A.R.S., provides that a person is justified in threatening deadly physical force if the person reasonably believes such force "is immediately necessary" to prevent the other person from committing any one of several enumerated crimes, including "kidnapping under § 13-1304." On appeal Estrella contends there was evidence of a kidnapping because his wife "was locked in the back of the truck and was visibly upset, suggesting that she was being taken away against her will" and based on his statements about kidnapping at the scene.
¶9 As the state points out, however, even were we to accept that Estrella's wife had been restrained, there was no evidence that her parents had the intent to do anything more. The statute defining kidnapping requires, inter alia, that a person restrain a victim with the intent to hold her for ransom, "inflict death, physical injury or a sexual offense" on her, or to place her "in reasonable apprehension of imminent physical injury." See A.R.S. § 13-1304(A). Nothing in the record before us supports a claim that Estrella's in-laws had such an intent.
¶10 Moreover, Estrella did not testify that he believed his wife was being kidnapped, but, as detailed above, only that his in-laws intended to kidnap him. Estrella's only testimony about his wife was that when he saw she was upset, he had tried to open the door "to get [her] out" before ultimately stabbing his father-in-law in what he claimed was self-defense. His wife very well may have been upset, but his claim she was being kidnapped is nothing more than an unreasonable inference based on speculation rather than the evidence. Vassell, 238 Ariz. 281, ¶ 9.
Section 13-411 justifies the use of force to prevent kidnapping generally, not only of a third party, and thus Estrella's claim that he believed himself to be the subject of an attempted kidnapping could have gone to a request for an instruction on that basis. But Estrella makes no such argument on appeal, and it is therefore waived. See State v. Bolton, 182 Ariz. 290, 298 (1995). In any event, force must be "immediately necessary" to prevent a crime, § 13-411(A), and Estrella was outside the vehicle and apparently free to walk away at the time he used force. --------
Disposition
¶11 For the foregoing reasons, we affirm Estrella's conviction and sentence.