Opinion
No. 2 CA-CR 2013-0157
05-16-2014
THE STATE OF ARIZONA, Appellee, v. ARMANDO ANDRES ORTIZ, Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Section Chief Counsel, Phoenix Counsel for Appellee Law Offices of Stephanie K. Bond, P.C., Tucson By Stephanie K. Bond 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20114276001
The Honorable Jane L. Eikleberry, Judge
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Section Chief Counsel, Phoenix
Counsel for Appellee
Law Offices of Stephanie K. Bond, P.C., Tucson
By Stephanie K. Bond
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 After a jury trial, Armando Ortiz was convicted of burglary and two counts each of aggravated assault and attempted second-degree murder, all arising from a shooting at a convenience store. He was sentenced to twenty-eight years in prison on each attempted murder count, with those sentences ordered to run concurrently. On appeal, he argues the trial court committed fundamental error by erroneously instructing the jury on the murder counts.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the challenged convictions. See, e.g., State v. Sarullo, 219 Ariz. 431, ¶ 2, 199 P.3d 686, 688 (App. 2008). One night in December 2011, Ortiz entered a convenience store with another individual and took two cases of beer from the cooler. After they left the store without paying for the beer, S.S., a private security guard, confronted and "grabbed" Ortiz outside the front door. Ortiz began striking the guard in the face, and seconds later, a second security guard, J.W., emerged from the store, sprayed Ortiz with pepper spray, and attempted to wrestle him to the ground. At some point during the struggle, Ortiz produced a handgun and, saying "I am not going back to jail" and "I am going to f---ing kill you," fired five rounds, one of which struck S.S. in the hand. After police officers arrived, Ortiz was arrested and subsequently charged with twelve felony counts, including two counts of attempted first-degree murder.
Two of the twelve counts were dismissed on the state's motion before trial, and another five charges were dismissed by the state after the jury was unable to reach a unanimous verdict on those counts.
¶3 At trial, the court instructed the jury on the lesser-included charge of attempted second-degree murder as follows:
The crime of attempted second-degree murder requires proof that the defendant: 1, intentionally engaged in conduct that would have been a crime if the circumstances relating to the crime were as the defendant believed them to be; or, 2, intentionally committed any act that was a step in a course of conduct that the defendant believed would end in the commission of a crime; or, 3, engaged in conduct intended to aid another person to commit a crime in a manner that would make the defendant an accomplice had the crime been committed or attempted by the other person.After this instruction had been read to the jury, Ortiz objected to the court's reference to a "reckless" mental state, arguing that a person "cannot attempt to commit a reckless offense." In response to this objection, the court modified its instruction, removing the third section of the second paragraph on attempted second-degree murder. The court retained the second section of the instruction referencing "serious physical injury," however. It then informed the jurors it had
The crime of second-degree murder requires proof of the following: 1, the defendant intentionally caused the death of another person; or 2, the defendant caused the death of another person by conduct which the defendant knew would cause death or serious physical injury; or 3, under circumstances manifesting extreme indifference to human life the defendant recklessly engaged in conduct that created a grave risk of death and thereby caused the death of another person.
. . . revised the second-degree murder instruction to instruct you that second-degree murder requires proof of one of the following, either the defendant intentionally caused the death of another person or the defendant caused the death of another person by conduct which the defendant knew would cause death or serious physical injury.
The jury instructions also were revised to remove an instruction on the non-cognizable offense of "attempted manslaughter."
¶4 After being convicted and sentenced as set forth above, Ortiz filed this appeal challenging his convictions for attempted second-degree murder. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
Attempted Second-Degree Murder Instruction
¶5 Ortiz argues the trial court committed fundamental error by erroneously instructing the jury on the elements of attempted second-degree murder. He asserts the court's instruction "allowed the jury to convict [him] even if [it] found that he only intended or knew his conduct would cause serious physical injury rather than death" and equates the instruction with a similar one rejected in State v. Ontiveros, 206 Ariz. 539, ¶ 11, 81 P.3d 330, 332 (App. 2003). In that case, the trial court had instructed the jury that "[t]he crime of attempted second degree murder" required proof that "1. The defendant intentionally committed an act; and 2. The act was a step in a course of conduct which the defendant planned or believed would cause the death or serious physical injury of another person." Id. ¶ 5 (emphasis omitted). After concluding that attempted second-degree murder required proof that a defendant had "embark[ed] on a course of conduct that is 'planned to culminate' in the death of another person," we reversed the conviction, reasoning that the defendant "may have been convicted for a non-existent offense." Id. ¶¶ 9, 19.
¶6 The state responds that the language of the instruction is consistent with the definition of attempted second-degree murder set forth in Ontiveros because the jury had to find that Ortiz believed his conduct would result in the "commission of [the] crime" of second-degree murder—i.e., result in death.
Initially, the state did not dispute Ortiz's assertion that the court's instruction misstated the law, instead urging in its answering brief that we should overrule Ontiveros. Before oral argument, however, the state filed a "Notice of Withdrawal of Argument" in which it conceded "Ontiveros was correctly decided" and asserted for the first time that "the particular attempted second degree murder instruction given in this case was a correct statement of law and complied with [this court's] holding in Ontiveros." While the state's failure to include this argument in its response could be grounds for finding waiver, State v. Edmisten, 220 Ariz. 517, ¶ 19, 207 P.3d 770, 776 (App. 2009), we will affirm a trial court's ruling "if legally correct for any reason," State v. Boteo-Flores, 230 Ariz. 551, ¶ 7, 288 P.3d 111, 113 (App. 2012). In doing so, we may consider arguments that otherwise might be deemed waived. Boteo-Flores, 230 Ariz. 551, ¶ 7, 288 P.3d at 113.
¶7 We review a trial court's jury instructions de novo to determine whether they accurately reflect the law. State v. Cox, 217 Ariz. 353, ¶ 15, 174 P.3d 265, 268 (2007). A challenged instruction should be viewed in its entirety and need only be "'substantially free from error'" in order to support a conviction. State v. Zaragoza, 221 Ariz. 49, ¶ 15, 209 P.3d 629, 633 (2009), quoting Cox, 217 Ariz. 353, ¶ 15, 174 P.3d at 268. Even under this standard, however, we find the instruction used below erroneous.
¶8 As set forth above, the trial court clearly identified two alternative levels of intent when instructing the jury on the underlying offense of second-degree murder. The state would have us disregard the portion of the jury instruction that referenced "serious physical injury" based on the court's accompanying instruction that attempted second-degree murder required proof that Ortiz had believed his actions "would end in the commission of a crime." According to this argument, the last phrase so clearly forecloses culpability absent intent to kill that the jury could not have been misled by the court's subsequent reference to a lesser intent to injure. We find this theory unpersuasive.
We note the state initially relied on the same statutory language to reach the contrary conclusion, i.e., that attempted second-degree murder can, in fact, be established by proof of intent to cause serious physical injury.
¶9 In State v. Dickinson, we determined that a similarly-structured instruction erroneously conveyed to the jury that the defendant could be convicted based on an intent to cause serious physical injury. 233 Ariz. 527, ¶ 11, 314 P.3d 1282, 1285 (App. 2013). The instruction in that case stated the jury could reach a guilty verdict if the defendant "believed [his] act was a step in the course of conduct planned to culminate in the commission of the crime of second degree murder" and defined that offense as follows:
The crime of second degree murder has the following elements: Number one, the defendant caused the death of another person; and number two, the defendant either, A, did so intentionally or, B, knew that his conduct would cause death or serious physical injury.Id. ¶ 8 (emphasis omitted). Citing Ontiveros, we concluded this instruction constituted fundamental error and went on to evaluate whether the defendant had established prejudice. Id. ¶¶ 11-12.
¶10 It appears even less likely here that the jury would have reconciled these seemingly-contradictory directives in favor of the correct level of intent because the court reinforced the importance of the differing mental states when it expressly removed "recklessly" from the second-degree murder instruction. Indeed, even had the jurors initially adopted the state's proposed reading and disregarded the alternative mental states in the court's second-degree murder instruction, the subsequent focus on the lesser levels of intent contained in that instruction permitted them to believe they could convict based only on intent to cause serious physical injury. Accordingly, we conclude the trial court's instruction "improperly relieved the State of its burden of proving an element of the offense" and thereby constituted fundamental error. State v. Kemper, 229 Ariz. 105, ¶¶ 5-6, 271 P.3d 484, 486 (App. 2011).
Resulting Prejudice
¶11 We next must consider, however, whether Ortiz was prejudiced by the trial court's use of an erroneous instruction. See, e.g., State v. Herrera, 232 Ariz. 536, ¶ 36, 307 P.3d 103, 117 (App. 2013). To establish prejudice, a defendant alleging instructional error "must show that a reasonable, properly instructed jury 'could have reached a different result.'" Dickinson, 233 Ariz. 527, ¶ 13, 314 P.3d at 1286, quoting State v. James, 231 Ariz. 490, ¶ 15, 297 P.3d 182, 186 (App. 2013). Our prejudice inquiry is fact-intensive, with the outcome dependent upon "'the type of error that occurred and the facts of a particular case.'" Id., quoting James, 231 Ariz. 490, ¶ 15, 297 P.3d at 186. "In determining whether a defendant has shown prejudice, the court considers the parties' theories, the evidence received at trial and the parties' arguments to the jury." Id.; see also James, 231 Ariz. 490, ¶ 15, 297 P.3d at 186.
Although the state asserted at oral argument that the appropriate standard for assessing prejudice is "a reasonable probability of a different result," citing Strickland v. Washington, 466 U.S. 668 (1984), we must adhere to our supreme court's holding that a defendant establishes prejudice by showing that a "reasonable jury . . . could have reached a different result," State v. Henderson, 210 Ariz. 561, ¶ 27, 115 P.3d 601, 609 (2005) (emphasis added).
¶12 At trial, Ortiz asserted a lack-of-intent defense to the murder charges, arguing in summation that his primary motivation was to escape and avoid being taken back to prison, and that all of his actions, from the beginning of the struggle to his ultimate arrest, were consistent with that intent. Ortiz argued he "intended to scare them, get out of there, get away with his freedom," but "never intended to kill another human being." And he conceded he had committed aggravated assault, arguing, "Maybe at the time that he was on the ground he was touching people with the intent to injure . . . [b]ut his actions were never intended to kill." Thus, "unlike defenses of mistaken identity, alibi or nonuse of a weapon," James, 231 Ariz. 490, ¶ 16, 297 P.3d at 186, Ortiz's defense implicated the applicable fundamental error, i.e., the mental state required for a conviction.
¶13 The state, on the other hand, maintained throughout trial that Ortiz had a premeditated intent to kill the security officers, and in its closing, focused solely on the crime of first-degree murder. However, the jury rejected that theory of the case, instead convicting Ortiz of the lesser-included offense of attempted second-degree murder. While this finding may have reflected a belief that Ortiz lacked premeditation, it is also consistent with a finding that he intended only to injure the officers. Accordingly, the theories presented by each side at trial do not foreclose Ortiz's argument that he was prejudiced by the erroneous instruction.
¶14 The state argues the evidence that Ortiz intended to kill the security guards is "beyond overwhelming," citing their testimony that Ortiz had shouted, "I am going to f---ing kill you," and had attempted to aim at them by "bending" or "twisting" his wrist. The state also notes Ortiz's failure to testify or offer any witnesses in his defense. However, even in the absence of such evidence, some details of the struggle are not entirely clear from the record. Several inconsistencies between the testimony of the security guards and that of a bystander who testified at trial could have led a reasonable jury to discount portions of the guards' accounts. For example, although both guards testified that the first shot had been fired while they were still on their feet wrestling with Ortiz, the bystander stated that no shots were fired until Ortiz was already on his stomach on the ground with both guards "laying [sic] on top" of him. In addition, J.W. testified that when he had emerged from the store, it was "two against one," with Ortiz and his companion punching S.S. Initially, S.S. equivocated on this point, but eventually stated, "it was obvious . . . they were both together as they were punching me in the face." The bystander, on the other hand, testified he "didn't see any punches" but, rather, "just saw [both guards] rush [Ortiz]." He also testified that the individual with Ortiz already had "take[n] off running" as soon as Ortiz was ordered to stop outside the store.
At first, S.S. stated that he "[h]onestly[ did not] remember" whether Ortiz's companion also had punched him in the face.
¶15 Assuming the jury accepted the guards' testimony, Ortiz's conduct also may have been viewed as consistent with his defense that he was only attempting to frighten them with the gun in order to escape. Indeed, that theory finds some support in undisputed portions of the record. And, contrary to the state's contention on appeal, Ortiz's statement that he was "going to f---ing kill" the guards does not necessarily foreclose a finding that he lacked the requisite intent. See State v. Fulminante, 193 Ariz. 485, 975 P.2d 75 (1999) (defendant's statement to victim that he would "'kill [her] f---ing ass'" not necessarily expression of murderous intent). In support of his argument that this statement was nothing more than a threat designed to facilitate his escape, Ortiz argued that he could have killed the guards had that been his intention, and directed the jury to evidence from which it could have inferred that he forewent at least one shot at close range.
Ortiz struggled to avoid arrest, exclaimed, "I am not going back to jail," offered to bribe the security guards if they would let him go, and then attempted to flee a second time after the officers believed they had him restrained. And the record lacks any suggestion that Ortiz had a motive to harm the security guards except to facilitate his escape.
The testimony of J.W. and S.S. indicated that Ortiz fired the first shot while all three were still struggling on their feet and that, although J.W. had grabbed Ortiz from behind in a bear hug "around his shoulders," he did not grab Ortiz's shooting arm until after the first shot had been discharged. J.W.'s testimony suggests that S.S. may have been directly in front of Ortiz at that moment.
¶16 Thus, although a jury readily could have found that Ortiz committed attempted second-degree murder, that was not the only reasonable conclusion available. It also could have found that, given his overriding motivation to avoid arrest, and the quick sequence of events during the struggle, Ortiz never formulated any specific intent to kill the guards when he was discharging the firearm. The jury also may have given somewhat more credence to the state's theory of intent, yet still found that the defense theory created a reasonable doubt about whether Ortiz specifically intended to kill. But in view of all the evidence at trial and the erroneous instruction, it is "unknowable" whether the jury premised its conviction on an intent to kill or on the lesser intent to cause serious physical injury. See James, 231 Ariz. 490, ¶ 18, 297 P.3d at 186-87 (finding fundamental error where jury instructed defendant could be convicted on proof of less culpable mental state). Accordingly, although we recognize there is strong evidence consistent with the conclusion that Ortiz had intent to kill, we cannot conclude that a reasonable jury could not have reached a different result on this evidence had it been instructed correctly on the second-degree murder charge. See Ontiveros, 206 Ariz. 539, ¶ 18, 81 P.3d at 333-34 (correctly instructed jury could have found defendant who admitted shooting victim intended injury, not death).
¶17 We lastly consider whether counsel's statements during closing arguments mitigated the effect of the erroneous instruction. As the state points out, the prosecutor focused on the level of intent required for attempted first-degree murder and did not address the intent requirement for the lesser-included charge of attempted second-degree murder. But this point can be viewed as only emphasizing the jurors' rejection of at least one element of the state's theory on this charge—the requisite intent to cause death. See A.R.S. § 13-1105(A)(1); State v. Rankovich, 159 Ariz. 116, 121-22, 765 P.2d 518, 523-24 (1988) (elements of first-degree murder include intentionally or knowingly causing death). Ortiz's counsel, on the other hand, implied at several points during his closing argument that the jurors were required to find that Ortiz intended to kill someone in order to find him guilty of second-degree murder. On balance, however, we do not consider his statements sufficient to overcome the court's written instructions or multiple oral directives to the jury that it could convict Ortiz for attempted second-degree murder if it found intent to cause serious physical injury. Cf. Boyde v. California, 494 U.S. 370, 384-85 (1990) (instructions from court generally carry more weight than arguments of counsel). Accordingly, we conclude that a reasonable jury could have reached a contrary result had it been properly instructed, and therefore vacate Ortiz's attempted murder convictions.
These statements read:
An attempt is with intent to commit a crime you engage in some act which is a part of that crime. And the intent part goes with the attempt. The knowingly part of second-degree murder . . . is did he know that his actions were going to kill somebody? Did he knowingly try and kill somebody? Did he intend to knowingly try and kill somebody? He didn't do that.
Criminal Restitution Order
¶18 Finally, we address an issue that was neither raised below nor briefed on appeal. Specifically, at the time of sentencing, the trial court entered an order that reduced "all fines, fees, and assessments" to a criminal restitution order (CRO). The imposition of such an order prior to the expiration of Ortiz's sentence "'constitutes an illegal sentence, which is necessarily fundamental, reversible error.'" State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). Accordingly, the order cannot stand.
Section 13-805, A.R.S., has since been amended. See 2012 Ariz. Sess. Laws, ch. 269, § 1.
Disposition
¶19 For the foregoing reasons, we vacate Ortiz's convictions and sentences for second-degree murder and remand for a new trial on those charges. We also vacate the portion of the trial court's order that imposed an unauthorized CRO. Ortiz's remaining convictions and sentences are affirmed.