State v. Celaya

• Citation: 135 Ariz. 248,660 P.2d 849
• Decision Date: 17 January 1983
• Docket Number: No. 5288,5288
• Parties: STATE of Arizona, Appellee, v. Genaro CELAYA, Appellant.
• Court: Arizona Supreme Court

Page 849

660 P.2d 849

135 Ariz. 248

STATE of Arizona, Appellee, v. Genaro CELAYA, Appellant.

No. 5288.

Supreme Court of Arizona, In Banc.

Jan. 17, 1983.

Rehearing Denied March 15, 1983.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, and David R. Cole, Asst. Attys. Gen., Phoenix, for appellee.

Frederic J. Dardis, Pima County Public Defender by Lawrence H. Fleischman, Asst. Public Defender, Tucson, for appellant.

HAYS, Justice.

Jerry Celaya was convicted of armed robbery, A.R.S. § 13-1904, and first degree felony-murder, A.R.S. § 13-1105(A)(2). He was sentenced to life on the murder charge and to a concurrent term of ten and one-half years for the robbery. We have jurisdiction of the appeal pursuant to Ariz. Const. art. 6 § 5 and A.R.S. § 13-4031.

On November 30, 1979, Jerry Celaya and John Walker, an undercover narcotics agent with the Department of Public Safety (DPS), met at the Tucson airport to conduct a sale of cocaine. After the purported exchange of drugs took place, the appellant shot and killed John Walker.

At trial, the appellant presented evidence that he was a long-time informant for various law-enforcement agencies concerned with narcotics. His story is that several years ago he met a Mexican drug dealer in connection with his informant activities for the Federal Drug Enforcement Administration. Celaya began hearing persistent rumors that the Mexican dealer wanted to kill him. Fearing for his life, Celaya eventually formulated a plan whereby he would pretend to sell drugs but would instead steal the money from the drug purchaser and use it to bribe Mexican officials to arrest the Mexican drug dealer.

John Walker heard through another informant working for DPS that Celaya sought a purchaser of cocaine. He planned to go undercover and pose as a buyer in order to arrest Celaya in the act of selling drugs. On the agreed-upon day, the two men met at the Tucson airport where DPS agents had taken up surveillance. The agents watched as Celaya took a bag from Walker's car, put it in his own vehicle, took a rectangular bag from his trunk and carried it to Walker's car. Celaya's container of "drugs" that he delivered to Walker held only clothes and old shoes. Appellant then reached in and snatched the keys from Walker's car ignition. At this point the shooting of Walker occurred.

When the officers reached the car, they found Walker, his arm limp by his side, clutching his gun, safety released, cocked and a full magazine and an unfired round in the chamber. At trial the state attempted to prove that Walker drew his weapon after he was shot. Celaya testified that, after snatching the car keys, he saw Walker pull his gun and heard a clicking sound. Only then, claims Celaya, did he draw his own gun and shoot Walker in self-defense. Celaya then ran to his own car where he was apprehended.

On appeal Celaya asserts seven issues:

1. Did the trial court err in rejecting appellant's lesser-included theft instruction?

2. Did the trial court err in rejecting appellant's self-defense instructions?

3. Did the trial court err in rejecting appellant's requested instructions on the defense of apparent authority?

4. Did the trial court err in rejecting appellant's requested instructions on the lesser-included offenses for homicide?

5. Did the trial court err in denying appellant's motion to dismiss for failure by the state to comply with disclosure of requested exculpatory evidence?

6. Was evidence of appellant's prior bad acts improperly admitted?

7. Did the giving of the state's "flight" instruction constitute an unconstitutional comment on the evidence?

I. INSTRUCTION ON THEFT

A. Is Theft a Lesser-Included Offense of Robbery?

The jury convicted the defendant of armed robbery and first degree murder under the felony-murder statute. Celaya argues that he was at most guilty of theft, not robbery, and that the trial court erred by refusing to charge the jury on the crime of theft. The appellant objected at trial and sufficiently preserved the record.

Rule 23.3, Rules of Criminal Procedure, 17 A.R.S., requires that a lesser-included offense be submitted to the jury:

"Forms of verdicts shall be submitted to the jury for all offenses necessarily included in the offense charged, ..."

An instruction on a lesser-included offense is proper under Rule 23.3 if the crime is a lesser-included offense to the one charged and if the evidence otherwise supports the giving of the instruction. State v. Dugan, 125 Ariz. 194, 195, 608 P.2d 771, 772 (1980). ¹ To constitute a lesser-included offense, the offense must be composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one. State v. Malloy, 131 Ariz. 125, 639 P.2d 315 (1981).

Whether theft ² is a lesser-included offense of robbery ³ under the new criminal code is an issue of first impression to this court. It is well established that under the old criminal code theft was a lesser-included offense. State v. Dugan, supra. Recently, in State v. Yarbrough, 131 Ariz. 70, 73, 638 P.2d 737, 740 (App.1981), the Arizona Court of Appeals held that theft is a lesser-included offense of robbery under the new code. The court reasoned that robbery as defined under the new code "necessarily includes an exercise of control over property as contemplated by the definition of theft in A.R.S. § 13-1802(A)(1)" because "one cannot take property without exercising control over it."

After reviewing the cases, we find the reasoning of Yarbrough persuasive and hold that theft as defined in A.R.S. § 13-1802(A)(1) is a lesser-included offense of robbery, A.R.S. § 13-1902. The state argues that theft is not a lesser-included offense because there is a mens rea for theft not present in robbery. However, A.R.S. § 13-202(B) prescribes that an appropriate mental state will be judicially read into statutes which "necessarily involve" a culpable mental state. It is clear that specific intent is an element of robbery. State v. Broadfoot, 115 Ariz. 537, 566 P.2d 685 (1977).

B. Does the Evidence Support the Giving of a Theft Instruction?

We now consider whether on the evidence introduced at trial the jury could rationally find that the state failed to prove an element of the greater offense. That element must be required to convict of the greater, but not of the lesser offense, it must necessarily distinguish the greater from the lesser, State v. Dugan, supra, 125 Ariz. at 195, 608 P.2d at 773, and it must be in dispute. State v. Yarbrough, supra, 131 Ariz. at 73, 638 P.2d at 740. If the jury could rationally find that the state failed to prove that the taking of property was accomplished by force, but did in fact prove all the other elements, the jury could return a guilty verdict for theft.

Appellant and the state present two conflicting versions of the shooting. According to Celaya, the victim voluntarily gave the money to the appellant who carried the money bag to his own vehicle where he placed it on the front seat prior to returning to the victim's car. Statements by a witness corroborate this contention.

The state argues that under no version of the facts could the jury have found that appellant did not employ force in order to obtain or retain control of Walker's money. California, cited as authority by the state, has adopted the minority rule that any force used prior to the escape of a robber to a place of temporary safety elevates the crime from theft to robbery. People v. Anderson, 64 Cal.2d 633, 51 Cal.Rptr. 238, 414 P.2d 366 (1966). This is not the law in Arizona. Arizona Revised Statutes § 13-1902 requires that the element of force be found to have been used to either take the property or to resist the retaking of the property. However, robbery is not committed when the thief has gained peaceable possession of the property and uses no violence except to resist arrest or effect his escape. See Bauer v. State of Arizona, 45 Ariz. 358, 43 P.2d 203 (1935).

State v. Rodriquez, 125 Ariz. 319, 320, 609 P.2d 589, 590 (App.1980) cited by the state, explains a crucial concept regarding the taking of property by force. The case involves a drug transaction where one of the parties was an undercover narcotics agent. The agent gave the defendant $83,000 so that the defendant could count it as a preface to the drug transaction. After counting it, the defendant threatened the agent with a gun in order to keep the money in his possession. In response to the defendant's appeal that since he took the money without the use of force his conduct was theft and not robbery, the court noted there is a distinction between possession and custody. Although the defendant had custody of the money, the narcotics agent did not relinquish possession or control of the money until he felt he was going to be shot. Since control (as contrasted with custody) of the money was obtained by force, a robbery occurred.

If the jury believed Celaya's version of the facts, they could rationally find that he gained control of Walker's money without threat of force and that the taking of the money was complete when Celaya put the bag in his own car. The state attempted to argue in closing at trial that, even if there was no robbery of the money, at least there was a robbery of the car keys. Although the state does not address this in its appellate brief, we mention it here for purposes of remand. Again we find that the jury could rationally believe that Celaya snatched the car keys without force and that the resulting homicide of Walker occurred after the taking of the car keys was complete. Since the evidence before the jury would have supported a conviction of theft and an acquittal of robbery, Celaya was entitled to the requested lesser-included instruction.

C. Was the Defendant Prejudiced by the Failure to Give the Theft Instruction?

The state argues that the appellant was not prejudiced by the...