State v. Sierra-Cervantes
| Decision Date | 02 October 2001 |
| Docket Number | No. 1CA-CR 00-0801.,1CA-CR 00-0801. |
| Citation | 201 Ariz. 459,37 P.3d 432 |
| Parties | STATE of Arizona, Appellee, v. Jose Jesus SIERRA-CERVANTES, Appellant. |
| Court | Arizona Court of Appeals |
Janet Napolitano, Arizona Attorney General, By Randall M. Howe, Chief Counsel, Criminal Appeals Section and R. Wayne Ford, Assistant Attorney General, Phoenix, for Appellee.
James J. Haas, Maricopa County Public Defender, By Louise Stark, Deputy Public Defender, Phoenix, for Appellant.
¶ 1 Jose Sierra-Cervantes ("defendant") appeals from his conviction of one count of aggravated assault, a class three dangerous felony. The defense alleges that the instructions on self-defense, when read with the other instructions, confused and misled the jury.
¶ 2 We find no error requiring reversal. However, the instructions at issue inappropriately blend law pre-dating the passage of Arizona Revised Statutes ("A.R.S.") section 13-205 (2001) with the requirements of that statute. We recently found § 13-205 to be constitutional. State v. Farley, 199 Ariz. 542, 544-545, 19 P.3d 1258, 1260-1261 (App.2001). This opinion clarifies the form of jury instructions to be given when justification is a defense.
¶ 3 On January 6, 2000, defendant and the victim engaged in a brief but heated verbal exchange in their neighborhood street. Defendant admitted shooting the victim in the leg. He asserted, however, that the victim threatened him and was coming toward him when he shot. Defendant contended the shooting was justified as it was in self-defense.
¶ 4 The trial judge instructed the jury on self-defense. The instruction provided that the defendant must prove the defense was more probably true than not. The instruction also required the state to prove beyond a reasonable doubt that the shooting was not in self-defense. Neither side objected to the instruction.
¶ 5 The jury rejected defendant's justification defense. He was convicted and subsequently sentenced to a mitigated prison term of six years. This appeal followed.
¶ 6 The instruction given on self-defense provides in pertinent part as follows:
¶ 7 Fairly read, this instruction told the jury the following: (1) the defense had the burden of presenting evidence to raise the issue of self-defense and prove it by a preponderance of the evidence; (2) the state then bore the burden of proving, beyond a reasonable doubt, that the defendant did not act in self-defense; (3) the defendant was to be found not guilty if self-defense was proved; and (4) the state's burden of proving the underlying elements of the offense did not shift to the defense.
¶ 8 The first and second point communicated to the jury inappropriately blend the case law in effect prior to the passage of § 13-205 with the changes brought about by that section. It is helpful to review the pertinent law.
¶ 9 Prior to the passage of § 13-205, the defense bore only the very limited burden of raising evidence to support the giving of an instruction on self defense. State v. Duarte, 165 Ariz. 230, 231, 798 P.2d 368, 369 (1990). If the defendant raised the "slightest" evidence of self-defense, the jury was to be instructed on that defense. Id.
¶ 10 After raising the "slightest" evidence of self-defense, the burden then shifted to the state to prove that the defendant did not act in self-defense. Id.; State v. Cruz, 189 Ariz. 29, 34-35, 938 P.2d 78, 83-84 (App. 1996). The state bore this burden beyond a reasonable doubt. Duarte, 165 Ariz. at 231-32, 798 P.2d at 369-70. Under these holdings, a jury could be advised of the defendant's obligation to present evidence "raising" the issue of self-defense.1 A jury was required to be advised of the state's burden of disproving any act of self-defense, beyond a reasonable doubt.
¶ 11 Section 13-205 changed this structure. It provides that "a defendant shall prove any affirmative defense raised by a preponderance of the evidence, including any justification defense." As this statute makes plain, the defendant now has the burden to prove a justification defense by a preponderance of the evidence. We recently found this shift in the burden of proof to be constitutional. State v. Farley, 199 Ariz. 542, 544-545, 19 P.3d 1258, 1260-1261 (App.2001). Thus, the burden is no longer on the state to prove beyond a reasonable doubt that the defendant did not act in self-defense. On this specific issue, Duarte, Cruz and related cases are no longer valid and should no longer be argued.2 Juries should not be advised that the state bears any burden on self-defense. The state has none.
¶ 12 Further, juries should no longer be instructed that the defense has a separate burden of presenting evidence to raise self-defense in addition to the burden of proving it. The burden of raising evidence of self-defense is subsumed by the burden of proving self-defense.
¶ 13 Whether to instruct on self-defense is for the trial judge to determine, based on the evidence presented at trial.3 As the trial judge correctly instructed here, the burden to prove the elements of the underlying offense beyond a reasonable doubt always remains with the state. It never shifts, whether or not a justification defense is raised.4
¶ 14 As defendant did not object to the instructions he now claims to be in error, our review is for fundamental error only. Ariz. R.Crim. P. 21.3(c); State v. Valenzuela, 194 Ariz. 404, ¶ 2, 984 P.2d 12, 13 (1999).
¶ 15 Fundamental error is error "`going to the foundation of the case or that which takes from the defendant a right essential to his defense.'" State v. Stuard, 176 Ariz. 589, 601, 863 P.2d 881, 893 (1993) (quoting State v. Libberton, 141 Ariz. 132, 138, 685 P.2d 1284, 1290 (1984)). To be fundamental error, "[an] error `must be clear, egregious, and curable only via a new trial.'" State v. Bible, 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993) (quoting State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991)).
¶ 16 Furthermore, when the claim of error goes to jury instructions, we examine the instructions "in their entirety in determining whether they adequately reflect the law." State v. Rutledge, 197 Ariz. 389, 393 ¶ 15, 4 P.3d 444, 448 (App.2000). We look at the language of the instruction in view of how a reasonable juror could have construed it. State v. Spoon, 137 Ariz. 105, 109-10, 669 P.2d 83, 87-88 (1983). We will not reverse a conviction "unless we can reasonably find that the instructions, when taken as a whole, would mislead the jurors." State v. Strayhand, 184 Ariz. 571, 587, 911 P.2d 577, 593 (App.1995).
¶ 17 Defendant claims the following errors in the instructions: (a) the jury was not sufficiently told that it should consider all the evidence, (b) the jury was misled as to the burden of proof, and (c) the jury was inappropriately told to either acquit based on self-defense or convict. We address each of these claims individually and then the instructions as a whole.
¶ 18 Defendant argues that the instructions erroneously led the jury to conclude that it need not consider all the evidence in determining whether reasonable doubt existed as to the elements of the offense.
¶ 19 In defining the burden of proof for self-defense, as set forth above, the instruction provided as follows:
In determining whether the defendant has met this burden by a preponderance of the evidence, you are to consider all of the evidence whether presented by the state or the defendant.
(Emphasis added.) The focus of defendant's argument is that the reference to "all" the facts in describing the self-defense instruction confused the jury into believing that they should consider "all" the evidence in determining whether self-defense was established but need not consider "all" the evidence in determining whether the state had met its burden on the underlying charges. We do not agree.
¶ 20 The trial court also gave the following instructions:
It is your duty to determine what the facts are in the case by determining what actually happened. Determine the facts only from the evidence produced in court.
....
As you determine the facts, however, you may find that some instructions no longer apply. You must then consider the instructions that do apply, together with the facts as you have determined them.
¶ 21 The instructions make it plain that the jury is to determine what the facts in the case are from "the evidence produced in court." (Emphasis added.) There is no instruction to exclude facts that pertained to justification when considering all of the elements of the offense at issue. Taken as a whole, the instructions are not misleading on this point. See Strayhand, 184 Ariz. at 587, 911 P.2d at 593 (App.1995). There is no fundamental error in this regard.
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