State v. Lizardi

• Court: Arizona Court of Appeals
• Writing for the Court: MILLER
• Citation: State v. Lizardi, 234 Ariz. 501, 323 P.3d 1152, 684 Ariz. Adv. Rep. 4 (Ariz. App. 2014)
• Decision Date: 11 April 2014
• Docket Number: No. 2 CA–CR 2013–0188.,2 CA–CR 2013–0188.
• Parties: The STATE of Arizona, Appellee, v. Victor Kyle LIZARDI, Appellant.

234 Ariz. 501

323 P.3d 1152

684 Ariz. Adv. Rep. 4

The STATE of Arizona, Appellee,

v.Victor Kyle LIZARDI, Appellant.

No. 2 CA–CR 2013–0188.

Court of Appeals of Arizona, Division 2.

April 11, 2014.

Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson, Counsel for Appellee.

Lori J. Lefferts, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, Tucson, Counsel for Appellant.

OPINION

MILLER, Judge:

¶ 1 Victor Lizardi appeals his convictions and sentences for first-degree murder and possession of a deadly weapon by a prohibited possessor, contending the trial court erred in its premeditation instruction, its determination he was “on parole” at the time of the prohibited possessor offense, and its order for restitution to the Crime Victim Compensation Fund. For the following reasons, we affirm the convictions and sentences.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all inferences against Lizardi. See State v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 914 (2005). In August 2011, Lizardi was visiting friends in their apartment. He showed one of the residents bullets he had placed in the cabinet above the refrigerator. Lizardi left the apartment, but returned later with a gun, which appeared to be unloaded because he cocked it repeatedly. After another resident, D.C., told Lizardi to leave with the gun, D.C. saw him reach for the top of the refrigerator before walking to the outside door. Shortly thereafter, D.C. heard a gunshot, ran toward the sound, and observed Lizardi running out of the apartment. The victim, M.S., was dead on his bed from a single gunshot wound to the mouth. Soon after the shooting, Lizardi sent a text message to one of the residents saying, “Don't say sh—. I did everyone a favor.”

¶ 3 Lizardi was arrested and charged with first-degree murder and possession of a deadly weapon by a prohibited possessor. At his request, the counts were severed, and Lizardi agreed that the trial court would act as fact finder for the prohibited possessor count. The jury found him guilty of murder, and the court found him guilty on the other count. Lizardi received concurrent sentences, the longest of which was life in prison without the possibility of release on any basis for twenty-five years.

Premeditation Instruction

¶ 4 Lizardi argues the trial court erred in instructing the jury that premeditation could involve a short period of reflection. He contends the temporal portion of the instruction was unnecessary because “there was ample evidence that premeditation in this case could have occurred over a substantial period of time, if it occurred at all.” Lizardi also argues the instruction improperly emphasized the passage of time, relieving the state from its burden of proving premeditation.

¶ 5 We review a court's ruling on a jury instruction for an abuse of discretion. State v. Dann, 220 Ariz. 351, ¶ 51, 207 P.3d 604, 616–17 (2009). The court should reject instructions that misstate the law or would be misleading or confusing to the jury; “the test is whether the instructions adequately set forth the law applicable to the case.” State v. Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d 1006, 1009–10 (1998). Further, “in evaluating the jury instructions, we consider the instructions in context and in conjunction with the closing arguments of counsel.” State v. Johnson, 205 Ariz. 413, ¶ 11, 72 P.3d 343, 347 (App.2003). Here, the trial court instructed the jury:

Premeditation means that the defendant intended to kill another human being or knew he would kill another human being, and that after forming that intent or knowledge reflected on the decision before killing. It is this reflection regardless of the length of time in which it occurs that distinguishes the first degree murder from second degree murder.

An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion resulting from adequate provocation.

The time needed for reflection is not necessarily prolonged and the space between the intent or knowledge to kill and the act of killing may be very short.

¶ 6 Lizardi correctly notes there was evidence that his time to reflect could have started when he left the house to get the gun. From this possibility of long reflection, he relies on State v. Thompson, 204 Ariz. 471, 65 P.3d 420 (2003), for the proposition that the last sentence of the trial court's above instruction should be used “[o]nly when the facts of a case require it.” Id. ¶ 32. The possibility of long reflection, however, does not negate evidence the reflection may have been shorter, starting with the decision to load the gun, the decision not to leave the apartment when told, or at another time. Even if the jury concluded Lizardi had considered murder for only a brief moment, it would require the last sentence of the instruction to determine how to apply the law.

¶ 7 Our conclusion is supported by the absence of a specific indication in Thompson about when the last sentence would be appropriate, or that use of the sentence could result in error. State v. Nelson, 229 Ariz. 180, ¶ 22, 273 P.3d 632, 638 (2012) (“Thompson does not suggest that giving the entire instruction constitutes error.”). Additionally, neither Thompson nor any case citing it supports Lizardi's contention that the presence of evidence suggesting long reflection precludes the use of the last sentence of the instruction. See id. ¶¶ 22–23;State v. Lehr, 227 Ariz. 140, ¶¶ 53–59, 254 P.3d 379, 391 (2011).

¶ 8 In Lehr, our supreme court considered whether the last sentence was authorized in a case in which victims were killed by blunt force trauma to the head and bloody rocks were found beside the bodies. 227 Ariz. 140, ¶¶ 53–59, 254 P.3d at 391. The defendant argued the instruction, coupled with the prosecutor's closing argument that defendant could have formed the necessary intent as he picked up the rock, allowed the jury to convict him without proof of actual reflection. The court concluded that the instruction was not error, observing that the state did not rely on the passage of time alone. Id. ¶¶ 57–58. Likewise, in Nelson, the court reviewed such an instruction for fundamental error when evidence showed the defendant had left the scene, walked to a store, bought the murder weapon, walked back to the scene, and murdered the victim. 229 Ariz. 180, ¶¶ 22–23, 273 P.3d at 638. The court found no error, and did not indicate that the length of time involved dictated whether the last sentence was necessary. Id. ¶ 23. Lizardi contends these cases are distinguishable on their facts. But the distinctions are not essential to their analysis. Neither opinion indicates what length of time is proper for the instruction. Lehr appears to deal with a potentially short time frame in deciding to pick up a rock and use it as a weapon, Lehr, 227 Ariz. 140, ¶ 58, 254 P.3d at 391, and Nelson concerns a potentially long period in which the defendant left to purchase a weapon, Nelson, 229 Ariz. 180, ¶ 23, 273 P.3d at 638.

¶ 9 Lizardi also argues that the purported error in including the last sentence of the instruction was compounded by the state's closing arguments, in which the prosecutor stated that the reflection required “could be seconds” or could be “instantaneous.” But the prosecutor's argument was based on an accurate assessment of what the jury could conclude. The state did not improperly emphasize the passage of time alone to prove premeditation. Rather, it presented circumstantial evidence of premeditation: Lizardi brought bullets to the house, left to get a gun, and loaded it at the house. In closing arguments, the state emphasized the affirmative steps Lizardi had taken, arguing, “And how do you load a gun? Well, you put bullets in ... the magazine, they call it, or the clip, and then you put the clip in the gun, then you rack the gun. That's thinking about what you're doing.” Reviewing preparatory steps, even short ones, does not negate the premeditation element. See Nelson, 229 Ariz. 180, ¶ 23, 273 P.3d at 638 (where prosecutor highlighted decisions to walk to store to buy weapon before returning to use it, prosecutor's mention that time to reflect may be short not improper).

¶ 10 Finally, to the extent Lizardi argues Thompson specifically disapproved of any emphasis on shortened time and use of the word “instantaneous” by a prosecutor, he is mistaken. First, the disapproval of the “instantaneous” instruction in Thompson relied in part on it being paired with the erroneous jury instruction that “proof of actual reflection was not required.” 204 Ariz. 471, ¶¶ 26–27, 65 P.3d at 427. There was no such instruction here. Second, even where the prosecutor mentions “instantaneous,” there is no error if the state focuses on the evidence of premeditation. See e.g., State v. Kiles, 222 Ariz. 25, ¶¶ 21–22, 213 P.3d 174, 180 (2009) (although prosecutor noted time required to premeditate could be “instantaneous,” argument properly focused on premeditation evidence). The trial court did not abuse its discretion in allowing the last sentence of the premeditation instruction.

Alleyne Error

¶ 11 Lizardi next contends the trial court erred when it denied his request that the jury decide whether he had been on parole on the date of the prohibited possessor offense. A finding he had been “on parole” required that Lizardi be sentenced to at least the presumptive term on that count. SeeA.R.S. § 13–708(C).

¶ 12 We review de novo sentencing issues involving constitutional law. State v. Urquidez, 213 Ariz. 50, ¶ 11, 138 P.3d 1177, 1180 (App.2006). Lizardi relies on a recent opinion of the United States Supreme Court, Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). There, the Court held that the Sixth Amendment right to a jury trial...